Singh v New Zealand Breweries Limited (No.2)
[2009] FMCA 1281
•23 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v NEW ZEALAND BREWERIES LIMITED (No.2) | [2009] FMCA 1281 |
| BANKRUPTCY – Application to set aside bankruptcy notice filed after the time fixed for compliance had expired – application dismissed. |
| Bankruptcy Act 1966 (Cth), ss.30, 40, 41 Federal Magistrates Court (Bankruptcy Rules) 2006, r.3.02 |
| Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10 Brookfield v Davey Products Pty Ltd (unreported, Federal Court, Mansfield J, No SG 7158 of 1998, 25 September 1998) Brookfield v Yevad Products Pty Ltd(formerly Davey Products Pty Ltd) (2002) 192 ALR 111; [2002] FMCA 82 Budimir v McMahon [2000] FCA 1312 Guss v Johnstone (2000) 74 ALJR 884; [2000] HCA 26 James v Hill(No 2) (2005) 3 ABC(NS) 631; [2005] FCA 981 Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71; [1988] HCA 34 La Pegna and Another v Commissioner of Taxation (2006) 204 FLR 364; [2006] FMCA 1643 Olivieri v Stafford and Others (1989) 24 FCR 413 Re Athans; Ex parte Athans (1991) 29 FCR 302 Re Duckworth; ex parte Lockett (unreported, Federal Court of Australia, French J, 12 February 1987) Re: Benjamin John Hutchins; Ex parte: David J. Wall & Anor [1998] FCA 581 Re Sterling (R and S) also known as Tarisznyas, Ex parte Esanda Ltd (1980) 30 ALR 77; [1980] FCA 61 Re Vella; Ex parte Seymour (1983) 48 ALR 420 Re Walsh (1982) 47 ALR 751 Rozenbes and Others v Kronhill and Another (1956) 95 CLR 407; [1956] HCA 65 Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120; [1999] FCA 255 Singh v New Zealand Breweries Limited [2009] FMCA 1097 Skouloudis v St George BankLtd (2008) 173 FCR 236; [2008] FCA 1765 Swarbrick v Burge & Ors [2009] FMCA 985 Walsh v Deputy Commissioner of Taxation (1983) 47 ALR 616 Walsh v The Deputy Federal Commissioner of Taxation of the Commonwealth of Australia (1984) 156 CLR 337; [1984] HCA 33 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 | ||
| Applicant: | JUGESHINDER SINGH | |
| Respondent: | NEW ZEALAND BREWERIES LIMITED |
| File Number: | SYG2460 of 2009 |
| Judgment of: | Barnes FM |
| Hearing dates: | 23 & 27 October, 2 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 23 December 2009 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Ms K Dawson |
| Solicitors for the Respondent: | Mallesons Stephen Jaques |
ORDERS
The application to set aside bankruptcy notice NN3997 of 2009 be dismissed
The applicant pay the costs of the respondent as agreed and in the absence of agreement taxed in accordance with the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2460 of 2009
| JUGESHINDER SINGH |
Applicant
And
| NEW ZEALAND BREWERIES LIMITED |
Respondent
REASONS FOR JUDGMENT
On 27 February 2009 the respondent creditor New Zealand Breweries Limited obtained a default judgment against the applicant Mr Singh in the High Court of New Zealand in the sum of NZ $1,089,659.54.
On 31 August 2009 bankruptcy notice NN3997 of 2009 was issued based on a debt of $908,769.33 said to be due to the creditor from Mr Singh, consisting of the amount of the judgment of the High Court of New Zealand (which was registered in the Supreme Court of New South Wales on 18 June 2009), together with interest and registration costs.
On 12 October 2009 Mr Singh filed an application to set aside the bankruptcy notice. In his affidavit accompanying the application, Mr Singh specified the grounds that he was relying on to set aside the bankruptcy notice as follows:
(1) I am applying to set aside the judgment (attachment 1).
(2) I have a counter claim (to be filed in 10 days)
There were no attachments to the affidavit. At the time the application was filed, a registrar of the court extended the time for compliance with the bankruptcy notice on condition that it had been served on the applicant on 21 September 2009 as he claimed. The respondent sought that this order be discharged, on the basis that the bankruptcy notice was served on Mr Singh on 15 September 2009. On 27 October 2009 I discharged the order extending the time for compliance with the requirements of the bankruptcy notice (see Singh v New Zealand Breweries Limited [2009] FMCA 1097) being satisfied that the bankruptcy notice was served on the applicant on 15 September 2009. Nonetheless, the matter was stood over for hearing in relation to the remaining issues.
As Mr Singh was personally served with the bankruptcy notice on 15 September 2009, the time for compliance expired 21 days after service, that is, on 6 October 2009. The application to set aside the bankruptcy notice was not filed until 12 October 2009. As the order made by the registrar has been discharged (and in any event was conditional on service having occurred on 21 September 2009), the time for compliance with the bankruptcy notice expired before the application to set aside the bankruptcy notice was filed. No further extension was sought or granted.
The respondent sought that the application to set aside the bankruptcy notice be dismissed on the basis that the court had no power to set aside the bankruptcy notice after the time for compliance had expired on either of the bases relied on by Mr Singh.
Counsel for the respondent submitted that as the time for compliance with that notice had expired an act of bankruptcy had been committed and that the matter should be dismissed without the need to consider whether Mr Singh’s claims about his alleged application to set aside the judgment or alleged counter-claim would otherwise have provided a basis for the bankruptcy notice to be set aside.
Relevant to the issues relied on by Mr Singh in his application, s.40(1)(g) of the Bankruptcy Act 1966 (Cth) (the Act) provides:
(1) A debtor commits an act of bankruptcy in each of the following cases:
…
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia--within the time specified in the notice; or
(ii) where the notice was served elsewhere--within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
There is no suggestion that Mr Singh complied with the bankruptcy notice. He did not, within the time specified in the bankruptcy notice, satisfy the court that he had a counter-claim, set-off or cross demand within s.40(1)(g) of the Act. Hence, unless the bankruptcy notice was a nullity, Mr Singh committed an act of bankruptcy by his non-compliance with the bankruptcy notice.
There is no express power conferred on the court under the Act to set aside a bankruptcy notice. In Re Sterling (R and S) also known as Tarisznyas, Ex parte Esanda Ltd (1980) 30 ALR 77 at 82; [1980] FCA 61 Lockhart J stated:
It is not clear why Parliament did not expressly confer power on the court to set aside a bankruptcy notice; but plainly it assumed the existence of the power when enacting s 41(6A).
However his Honour found (at 82) that:
It is necessary for the purpose of carrying out or giving effect to the express power vested in the court to extend time for compliance with the requirements of bankruptcy notices that the court may set aside such notices. Hence s 30(1) is a source of the court’s power to set aside bankruptcy notices.
Section 30(1) of the Act is as follows:
(1) The Court:
(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and
(b may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.
In Re Vella; Ex parte Seymour (1983) 48 ALR 420 Morling J considered an application to set aside a bankruptcy notice filed, as in this case, after the expiration of the time fixed for compliance with the bankruptcy notice. In that case the judgment on which the notice was based had been set aside. It was held however that an act of bankruptcy had been committed when the debtor failed to comply with the bankruptcy notice, that the subsequent setting aside of the judgment on which the bankruptcy notice was based did not alter the fact that an act the bankruptcy had been committed and that there was no basis for setting aside the bankruptcy notice. In relation to the power to set aside a bankruptcy notice, Morling J referred to the general power of courts in bankruptcy under s.30(1) of the Bankruptcy Act and stated (at 426):
It is unnecessary in the present case to determine the ambit of the court's power under s 30(1). It is not in doubt that the sub-section gives the court power to set aside a bankruptcy notice in some circumstances: see Sterling's case, supra. It is sufficient for present purposes to say that no sufficient basis has been shown for setting aside the bankruptcy notice in this case. Setting aside the notice would not nullify the act of bankruptcy committed by the debtor on or about 12 April. In the events that may happen, the judgment creditor may be able to rely on that act of bankruptcy should he subsequently petition to sequestrate the debtor's estate.
Importantly his Honour continued (at 426):
[It was] submitted that setting aside the bankruptcy notice would be of some value to the debtor, in so far as its continued existence is an embarrassment to her. He argued that, accepting that she committed an act of bankruptcy by not complying with the notice, the debtor still desired to have the notice set aside. I can understand her desire, but I do not think it is a sufficient basis for exercising the power under s.30(1). If the notice were now to be set aside the impression might be created that no act of bankruptcy had been committed. But in the view I take of the law, that is not so. Thus the impression would be misleading. Certainly I am unable to find, in terms of s 30(1), that it is necessary to make an order setting aside the bankruptcy notice for the purpose of carrying out or giving effect to the Act.
The same may be said in this case.
Moreover, in Re Athans; Ex parte Athans (1991) 29 FCR 302, Hill J said at 310:
The Act gives no general discretion to the court to set aside bankruptcy notices valid in form which are not an abuse of the process and I know of no case where a bankruptcy notice has in such circumstances been set aside. The Act permits the issue of a bankruptcy notice and if valid in form prescribes the consequences to the bankrupt of non-compliance. The court’s jurisdiction to set aside a defective notice stems from s 30 of the Act but it is not a general discretionary jurisdiction. In this sense, it differs from, for example, the jurisdiction to make a sequestration order under s 52(1) which is expressly discretionary.
In Re: Benjamin John Hutchins; Ex parte: David J. Wall & Anor [1998] FCA 581 Spender J stated that:
It is necessary for the purpose of carrying out or giving effect to the express power vested in the court to extend time for compliance with the requirements of bankruptcy notices that the court may set aside such notices. Hence s 30(1) is a source of the court's power to set aside bankruptcy notices.
In my opinion the power to set aside a bankruptcy notice arises from an alternative source, namely, the principle of interpretation of statutes that a power conferred by Parliament carries with it the power necessary for its performance or execution. …
The power expressly conferred by Parliament on the court to extend time for compliance with the requirements of a bankruptcy notice where an application has been filed to set it aside carries with it the power to set aside the notice itself.
In Re: Hutchins the application to set aside the bankruptcy notice had been made within the time fixed for compliance with the bankruptcy notice (within s.41(6A) of the Act). It was in those circumstances that the court considered the contention that it should go behind the judgment on which the judgment debt was based.
Section 41(6A) of the Act provides that:
Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application has been made to the Court to set aside the bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
Mr Singh did not institute proceedings to set aside the judgment in respect of which the bankruptcy notice was issued before the expiration of the time fixed for compliance. Nor did he apply to the court to set aside the bankruptcy notice within that time (cf Re: Hutchins).
Section 41(7) of the Act is as follows:
Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter‑claim, set‑off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter‑claim, set‑off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.
While Mr Singh’s application to set aside the bankruptcy notice relied on the existence of a counter-claim in s.40(1)(g) (notwithstanding the absence of any details of the counter-claim in the accompanying affidavit) the application was not made before the expiration of the time fixed for compliance with the bankruptcy notice.
I note also that there is no suggestion in the application of 12 October 2009 that the bankruptcy notice was an abuse of the process of the court (cf Re Athans at 310). While in submissions Mr Singh referred generally to the court’s powers where there was an abuse of process (and referred to Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77) he did not contend that the creditor used the process for some purpose that was not legitimate (see Rozenbes and Others v Kronhill and Another (1956) 95 CLR 407; [1956] HCA 65). Rather he referred to these principles in aid of contentions about the need for a fair trial.
Importantly, subject to what is said below, no issue is taken by Mr Singh with the validity of the form of the bankruptcy notice.
In written submissions filed on 12 November 2009 Mr Singh purported to raise an additional “ground” on which the bankruptcy notice should be set aside, contending that the court should go behind the judgment on which the bankruptcy notice was based. However as counsel for the respondent contended, insofar as Mr Singh was seeking to contend that the underlying judgment on which the bankruptcy notice was based was invalid in some way and that on that basis the bankruptcy notice should be set aside, this was an application that should have been brought within the time fixed for compliance under s.41(6A)(b) of the Act. Where an application is brought under s.41(6A)(b) the court may consider whether there are any grounds for the court to go behind the judgment on which the bankruptcy notice is based. However the application was not made within the time specified in s.41(6A) (cf Re: Hutchins).
Moreover, the issue of whether to go behind a judgment could be raised by Mr Singh on the hearing of any creditor’s petition presented by the creditor. As suggested in Re Vella, in circumstances such as these, where the application to set aside a bankruptcy notice was not filed until after commission of an act of bankruptcy, it cannot be said that the court should consider it “necessary” to set aside the bankruptcy notice for the purpose of carrying out or giving effect to the express power to extend the time for compliance with the requirements of a bankruptcy notice or otherwise for the purpose of carrying out of giving effect to the Act.
Counsel for the respondent relied generally on the remarks of French J (as he then was) in Re Duckworth; ex parte Lockett (unreported, Federal Court of Australia, French J, 12 February 1987). In that case, after a creditor’s petition was filed, the debtor opposed the petition and also sought that the time for compliance with the bankruptcy notice on which the petition was based be extended and that the bankruptcy notice be set aside on the basis of a counter-claim. In contrast to the situation in these proceedings, the debtor had filed an affidavit (although not an application) within the time fixed for compliance with the bankruptcy notice. However (as in this case) the affidavit did not indicate, even in outline, the basis on which the quantum of the counter-claim was said to exceed the judgment debt or make any express statement that the debt that was the subject of the counter-claim could not have been set-off in the action in which the judgment was obtained.
After finding that the statutory extension of time to comply with the bankruptcy notice under s.41(7) of the Act did not operate in such circumstances, French J stated that even if the court had power to exercise a discretion to extend time for compliance with the bankruptcy notice in these circumstances, he would, in any event, refuse such an extension.
It was in that context that French J considered whether a refusal to extend time for compliance with the bankruptcy notice was fatal to the application to set aside the bankruptcy notice. French J expressed agreement with the observations of Lockhart J in Re Sterling that a source of the power to set aside the bankruptcy notice was to be found in s.30(1) of the Act, although also indicated that it was not necessary for him to decide whether that was the only source of such power. Importantly, his Honour then stated (at [16]):
Suffice to say the scheme of the Bankruptcy Act is quite inconsistent with the existence of a power to set aside a bankruptcy notice after the time for compliance with it has expired and no extension has been granted.
Nonetheless, as Raphael FM suggested (at [7]) in Brookfield v Yevad Products Pty Ltd(formerly Davey Products Pty Ltd) (2002) 192 ALR 111; [2002] FMCA 82, the authorities do not go so far as to “prevent” any application to set aside a bankruptcy notice relying on the court’s power under s.30(1) of the Bankruptcy Act in the absence of an “in time” application under s.41(6A) or (7). His Honour stated (at [10]) that the dictum of French J in Re Duckworth:
… should be limited to those cases where the bankruptcy notice itself is not impugned.
In Brookfield v Yevad, Raphael FM had been asked to determine, as a preliminary point, whether an application to set aside a bankruptcy notice could be made after the time for compliance had expired. It was in that context that his Honour expressed the view that had the matter proceeded to an application for a sequestration order, the court would have the power to set aside a bankruptcy notice that was invalid for reasons other than a cross-claim and on that basis that it could not be held to be restrained from doing so between the time at which the act of bankruptcy was committed and the hearing of the petition (at [12]).
Raphael FM went on to point out (at [13]) that the court has a discretion as to whether or not it would hear such applications and that the authorities suggested that the appropriate time to hear such applications was on the hearing of the petition.
In these proceedings submissions were made on the basis that if the applicant had sought to have the bankruptcy notice set aside on a ground that went to the validity of the bankruptcy notice, then, notwithstanding that the time for compliance with the bankruptcy notice had passed, the court would have power to hear such an application (see Brookfieldv Yevad and Budimir v McMahon [2000] FCA 1312). I agree. No authority was cited to suggest that the court would have such power in any other circumstances.
In Budimirv McMahon proceedings to set aside a bankruptcy notice were brought after the time for compliance had passed. The bankruptcy notice had been issued in the name of a deceased creditor. Merkel J found that it was a nullity. His Honour rejected a contention that it was too late to apply to set aside the bankruptcy notice in those circumstances, finding at [7]:
An act of bankruptcy can only occur in respect of a Bankruptcy Notice that is a valid notice. An act of bankruptcy could not be committed in respect of a Bankruptcy Notice that is invalid and therefore a nullity.
As counsel for the respondent contended however, there had been no allegation made by Mr Singh in these proceedings of any defect in the bankruptcy notice itself. As set out above, the grounds relied on in the original application to set aside the bankruptcy notice were that the applicant was applying to set aside the judgment and that he had a counter-claim (which was not elaborated on in the affidavit).
I note in relation to the contention that there was a cross-claim, that the applicant failed to comply with r.3.02(2) of the Federal Magistrates Court (Bankruptcy) Rules 2006 which is as follows:
If the application is based on the ground that the debtor has a counter‑claim, set‑off or cross demand mentioned in paragraph 40 (1) (g) of the Bankruptcy Act, the affidavit must also state:
(a) the full details of the counter‑claim, set‑off or cross demand; and
(b) the amount of the counter‑claim, set‑off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and
(c) why the counter‑claim, set‑off or cross demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued.
No details of the counter-claim were provided in the affidavit accompanying the application to set aside the bankruptcy notice. In La Pegna and Another v Commissioner of Taxation (2006) 204 FLR 364; [2006] FMCA 1643 (at [50] – [55]) and Swarbrick v Burge & Ors [2009] FMCA 985 (at [96] – [98]) Lucev FM suggested that in circumstances where under s.41(5) of the Act any notice disputing the validity of the sum specified in a bankruptcy notice as the amount due to the creditor had to be given within the time allowed for payment and as r.3.02 required that the application “must” be supported by an affidavit setting out the grounds in support of the application (and see James v Hill(No 2) (2005) 3 ABC(NS) 631; [2005] FCA 981), the failure to file an affidavit setting out the grounds in support was a failure depriving the court of jurisdiction to set aside the bankruptcy notice.
In any event, while the application relied on grounds within s.41(6A) or s.41(7), the requirements of those subsections were not met as the application was made outside the time for compliance with the bankruptcy notice (given that the condition in the order made by a registrar on 12 October 2009 was not met and hence the order was discharged). As a consequence of Mr Singh’s non-compliance with the bankruptcy notice, an act of bankruptcy has been committed. On the authorities referred to in these proceedings I accept that the court now has no power to extend the time for compliance with the bankruptcy notice or to set aside the bankruptcy notice insofar as the application purported to be of the nature referred to in either s.41(6A) or s.41(7) of the Act (see Re Duckworth, Brookfield v Yevad and also see Brookfield v Davey Products Pty Ltd (unreported, Federal Court, Mansfield J, No SG 7158 of 1998, 25 September 1998) and Guss v Johnstone (2000) 74 ALJR 884; [2000] HCA 26). However, I also accept, consistent with the approach in Brookfeld v Yevad, that while the application to set aside the bankruptcy notice was made after the time for compliance with the bankruptcy notice had expired, the court may nonetheless consider any ground that impugns the bankruptcy notice itself.
In this case no such ground was raised in the application. Mr Singh submitted that the court should go behind the judgment on which the bankruptcy notice was based and took issue with the amount of the judgment. He suggested that these concerns went to the validity of the bankruptcy notice.
No issue was raised as to any defect or irregularity in the form of the bankruptcy notice, except that Mr Singh suggested that because he disputed the amount of the debt claimed in the bankruptcy notice this went to the validity of the bankruptcy notice. In support of that proposition he referred to the decision of the Federal Court in Skouloudis v St George BankLtd (2008) 173 FCR 236; [2008] FCA 1765.
However in Skouloudis there was a notice disputing the validity of the bankruptcy notice under s.41(5) of the Act, which provides:
A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.
There is no suggestion that Mr Singh gave the creditor notice under s.41(5) of the Act. As s.41(5) states, if no notice is given under that section, a bankruptcy notice is not liable to be set aside by reason only of an overstatement (see Re Walsh (1982) 47 ALR 751 affirmed on appeal in Walsh v Deputy Commissioner of Taxation (1983) 47 ALR 616, Walsh v The Deputy Federal Commissioner of Taxation of the Commonwealth of Australia (1984) 156 CLR 337; [1984] HCA 33, Olivieri v Stafford and Others (1989) 24 FCR 413 and Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120; [1999] FCA 255).
Mr Singh (who is self-represented) stated that he could find no authority in relation to when a bankruptcy notice would be a nullity. In Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71; [1988] HCA 34 Mason CJ, Wilson, Brennan, Deane, and Gaudron JJ, stated the following (at 77 – 79):
Three questions arise as to the validity of the bankruptcy notices in this case: are they defective or irregular; if so, is the defect or irregularity substantive or formal; and if it is formal only, has it occasioned substantial and irremediable injustice?
It may be accepted that a bankruptcy notice which mis-states the amount due to the creditor is defective or irregular. …
…
The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v Federal Commissioner of Taxation; Pillai . In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908. (Emphasis added; footnotes omitted).
However if the amount specified in a bankruptcy notice is in fact due and payable in accordance with the judgment, the essential requirements are met. (Also see Adams v Lambert (2006) 228 CLR 409; [2006] HCA 10).
In this case the bankruptcy notice followed the judgment on which it was based according to its terms and claimed payment “in accordance with the judgment” (see Kleinwort). Mr Singh’s contentions in relation to the judgment on which the bankruptcy notice was based and whether the debt was in fact due are not matters that impugn the bankruptcy notice such as to render it a nullity if established.
It is the case that if such matters were raised and made out on the hearing of a creditor’s petition that may well mean that a sequestration order would not be made. If the creditor presented a creditor’s petition based on the act of bankruptcy committed by Mr Singh, as Raphael FM pointed out in Brookfield v Yevad, that would be the appropriate time for such matters to be determined.
Finally, in written submissions Mr Singh submitted that, notwithstanding my judgment of 27 October 2009 in relation to service of the bankruptcy notice, I should uphold the application to set aside the bankruptcy notice in light of “new evidence” as to service of the bankruptcy notice. However such submission does not establish a basis on which the court could set aside the bankruptcy notice in these proceedings.
On the authorities before me, I am not persuaded that in the circumstances of this case the court has the power to set aside the bankruptcy notice on the basis of any of the grounds relied on by Mr Singh.
In any event, even if strictly speaking the court did have power to set aside the bankruptcy notice in this case notwithstanding the commission of an act of bankruptcy, I would not, in my discretion, do so, having regard to all the circumstances and in particular the fact that no application to set aside the judgment had been made prior to the application to set aside the bankruptcy notice; that there were no details of the claimed counter-claim in the affidavit accompanying the application; that the matters relied on in submissions were not raised in the original application or affidavit; that an act of bankruptcy has occurred; that no issue is taken with the form or content of the bankruptcy notice that goes to its validity; and that Mr Singh can raise issues about going behind the judgment on which the bankruptcy notice is founded on the hearing of any creditor’s petition.
The application should be dismissed, with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 23 December 2009
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