Shephard v Costa Exchange Ltd

Case [2010] FMCA 314

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEPHARD v COSTA EXCHANGE LTD & ORS [2010] FMCA 314
BANKRUPTCY – Disputed bankruptcy notice – whether a debtor has a countervailing cross claim considered – whether the bankruptcy notice sufficiently identifies the address at which payment can be made considered – whether the certificate of judgment annexed to the bankruptcy notice is in proper form considered.
Bankruptcy Act 1966, s.41
Bankruptcy Regulations
Evidence Act 1995 (Cth), ss.157, 160
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

Bryant v Commonwealth Bank of Australia [1994] FCA 470
Ebert v Union Trustee co of Australia Ltd (1960) 104 CLR 346
Glew v Harrowell of Hunt and Hunt Lawyers (2003) 198 ALR 331
Goldberg v Morrow [2005] FCA 1038
Massih v Esber (2008) 250 ALR 648
Re Gerrard Graeme Crisafulli, ex parte: National Commercial Banking Corporation of Australia Ltd [1985] FCA 238
Re Nugent; ex parte Nugent [1985] FCA 101
Shephard v Blueberry Farms [2001] FMCA 2
Shephard v Chiquita Brands (South Pacific) Ltd [2001] FMCA 78
Shephard v Chiquita Brands (South Pacific) Ltd [2002] FCA 466
Shephard v Chiquita Brands (South Pacific) Ltd [2002] FMCA 115
Shephard v Chiquita Brands (South Pacific) Ltd [2003] FCA 465

Shephard v Chiquita Brands (South Pacific) Ltd [2004] FCAFC 76
Vogwell v Vogwell (1939) 11 ABC 83
Applicant: DEREK GEORGE SHEPHARD
First Respondent: COSTA EXCHANGE LTD
Second Respondent: ANTHONY GEOFFREY HARTNELL
Third Respondent: GARY WILLIAM WRIGHT
Fourth Respondent: DAVID ANTHONY BARDON
Fifth Respondent: PETER WOODS
Sixth Respondent: RIDLEY BELL
Seventh Respondent: MICHAEL TAMANI
Eighth Respondent: SCOTT ROLAND WOLGAMOT
Ninth Respondent: PETER McPHERSON
File Number: SYG 625 of 2010
Judgment of: Driver FM
Hearing date: 7 May 2010
Date of Last Submission: 17 May 2010
Delivered at: Sydney
Delivered on: 26 May 2010

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr J S Tobin
Solicitors for the Respondents: Watson Mangioni Lawyers Pty Limited

ORDERS

(1)The application filed on 22 March 2010 to set aside bankruptcy notice NN596 of 2010 is dismissed with costs.

(2)Exhibit A1 is to be returned to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 625 of 2010

DEREK GEORGE SHEPHARD

Applicant

And

COSTA EXCHANGE LTD

First Respondent

ANTHONY GEOFFREY HARTNELL

Second Respondent

GARY WILLIAM WRIGHT

Third Respondent

DAVID ANTHONY BARDON

Fourth Respondent

PETER WOODS

Fifth Respondent

RIDLEY BELL

Sixth Respondent

MICHAEL TAMANI

Seventh Respondent

SCOTT ROLAND WOLGAMOT

Eighth Respondent

PETER McPHERSON

NINTH   Ninth Respondent

REASONS FOR JUDGMENT

Introduction and background

1.Mr Shephard applied on 22 March 2010 to set aside bankruptcy notice NN596 of 2010 served on him on 2 March 2010. The application also sought an extension of time for compliance with the bankruptcy notice. Extension of time orders were made by a registrar and me pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) up to and including 7 May 2010. At the hearing of this matter on that day, I formed the view that no further order under that section was required as, amongst other things,…

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Details
AGLC
Shephard v Costa Exchange Ltd [2010] FMCA 314
Case
[2010] FMCA 314
Decision Date

CaseChat Overview and Summary

The case of Shephard v Costa Exchange Ltd involved the applicant contesting a bankruptcy notice issued by the respondent, Costa Exchange Ltd, on 22 March 2010. The applicant sought to set aside the bankruptcy notice and was represented by legal counsel. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the bankruptcy notice was valid and properly served, and if there were any grounds upon which the applicant could set it aside. The court needed to consider the provisions of the Bankruptcy Act 1966, which outline the requirements for issuing and serving a bankruptcy notice, and the circumstances under which a notice may be set aside. The applicant argued that the notice was invalid due to procedural errors or other reasons warranting its cancellation.

The court found that the bankruptcy notice was validly issued and served, and there were no grounds to set it aside. The applicant's arguments did not meet the threshold required to invalidate the notice. The court emphasised the importance of adhering to the statutory requirements for issuing bankruptcy notices and noted that procedural errors alone are not sufficient grounds for setting aside a notice unless they materially affect the fairness of the proceedings. The applicant's application was dismissed with costs.

As a result of the dismissal, the court ordered that the application filed on 22 March 2010 to set aside the bankruptcy notice NN596 of 2010 was to be dismissed with costs. Furthermore, Exhibit A1, which presumably represents a document or evidence submitted by the applicant, was to be returned to the applicant. This outcome signifies that the bankruptcy notice remains in effect, and the applicant is still subject to the consequences of the notice unless further legal avenues are pursued.

Orders

Orders of the court

(1) The application filed on 22 March 2010 to set aside bankruptcy notice NN596 of 2010 is dismissed with costs.

(2) Exhibit A1 is to be returned to the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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