Skrzypczyk v Natural Stone Plant Hire - [2002] FMCA 373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SKRZYPCZYK v NATURAL STONE PLANT HIRE

[2002] FMCA 373

BANKRUPTCY – Application to set aside bankruptcy notice – application for adjournment – failure to comply with requirements of Rules – failure to comply with procedural directions – no grounds shown for disputing debt.

Magistrates Court Act 1989, s.107(7)
Federal Magistrates Court Rules 2001, r 30.02
Bankruptcy Act 1966 (Cth), s.41(7)

Applicant:

ADAM JOHN SKRZYPCZYK

Respondent:

NATURAL STONE PLANT HIRE PTY LTD

File No:

MZ 10 of 2002

Delivered on:

4 March 2002

Delivered at:

Melbourne

Hearing date:

4 March 2002

Judgment of:

Phipps FM

REPRESENTATION

The Applicant appearing in person.

Counsel for the Respondent:

Mr G. Lucas

Solicitors for the Respondent:

Matthew Shaw & Associates

ORDERS

That Natural Stone Plant Hire Pty Ltd be substituted as the Respondent.
That the Application be dismissed.
That the Applicant pay the Respondent’s costs including reserved costs to be taxed in accordance with Rule 62 of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 10 of 2002

ADAM JOHN SKRZYPCZYK

Applicant

And

NATURAL STONE PLANT HIRE PTY LTD

Respondent

REASONS FOR JUDGMENT

This is an application to set aside a bankruptcy notice which was issued by the official receiver on 12 September 2001. The application for the bankruptcy notice was made by Natural Stone Plant Hire Pty Ltd, the respondent to the application against Adam Skrzypczyk, the applicant. The bankruptcy notice seeks payment of an amount of $24,782.32, being the amount of a judgment debt plus interest obtained in the Magistrates Court of Victoria at Melbourne on 14 May 2001.
The judgment was a default judgment for an amount of $22,500, plus interest of $1396.48 and costs of $786.53. The balance of the amount of $24,782.32 claimed in the bankruptcy notice is made up of interest set out in the schedule to the bankruptcy notice. Interest is claimed at the rate of 11.5 per cent from 14 May 2001 to 11 December 2001, 211 days, pursuant to subsection 100(7) of the Magistrates Court Act 1989. The amount is $1495.79.
There are three applications on the court file. The first was filed on

8 January 2002 in which Adam John Skrzypczyk is the applicant and Charles Harris is said to be the respondent. There was an affidavit filed by the applicant in support of that application. That application stated that it was an application to set aside the bankruptcy notice on the basis of a counterclaim pursuant to s.41(7) of the Bankruptcy Act 1966.
The affidavit in support by Adam John Skrzypczyk sworn 8 January 2002 states that he is employed by Performance Car Rentals as a rental manager. He says that his counterclaim against Natural Stone Plant Hire Pty Ltd is for the following reasons, which are supported by invoices:
i)Work performed on Charles Harris' boat, who was the director of Natural Stone Plant Hire.
ii)This work was performed in good faith and money owed to his company would be an exchange of cheques.
iii)In the interim Natural Plant Hire didn't proceed with this agreement and went ahead with a judgment against Adam John Skrzypczyk signalling that no money was owed to Adam John Skrzypczyk.
iv)These documents supplied are evidence that Natural Plant Hire had work performed on their boat and also car hire from Adam John Skrzypczyk.
v)No letter stating a breakdown of moneys owed to Natural Plant Hire have ever been received by Adam John Skrzypczyk.
vi)The sum of money Natural Plant Hire is contesting is the sum of $24,782.32 and the counterclaim against the company is the sum of $25,245.50. There is an off-set of $463.18 which is in favour of moneys owed to Adam Skrzypczyk and this sum has not had interest charged to it.
vii)The applicant would like the civil dispute rectified as soon as possible on the basis that Natural Plant Hire owe more money to him and secondly, on the grounds that there has been no evidence of documents supporting moneys owed to Natural Plant Hire.
There are two copies of invoices on the file which would seem to have accompanied either the original application or the affidavit. One is an invoice from Online Car Care Pty Ltd to Natural Stone Constructions and the other is from Performance Car Rental to Natural Stone Plant Hire. Performance Car Rental would seem to be a corporation from what I have been able to glean. That application came before the court on 5 February 2002 before Deputy Registrar Mussett. She adjourned the further hearing to 25 February 2002 and ordered that:
“(1) The applicant file an application to amend the name of the respondent and evidence of counterclaim, set-off or cross-claim against the judgment debtor by 4 pm on Tuesday, 18 February 2002"
The applicant then filed a further application which was headed Amended Application. It was filed on 4 February 2002, which repeated that it was an application to set aside the bankruptcy notice on the basis of counterclaim under s.41(7). That was all that was filed following the hearing before and the order of Deputy Registrar Mussett. The matter came on before the court 25 February 2002. There was no appearance by the applicant on that occasion. It came before Deputy Registrar Efthim. He adjourned the matter to 4 March 2002.
On 27 February 2002 a further application was filed and made returnable on the hearing date of 4 March 2002. This application named the applicant as Adam John Skrzypczyk and the respondent as Charles Harris. The application sought:
a)The orders I seek are name change from Adam John Skrzypczyk to Online Car Care Pty Ltd at the time of these transactions.
b)All moneys were deposited in company bank accounts and not my name personally. I have notified bank and am seeking statements with transaction amounts and dates of transactions. I have been told there is 10 working days to retrieve these statements.
There was nothing apart from that filed. There was no affidavit filed in support of that application and no further affidavit filed. The respondent has filed an affidavit sworn by Charles Simmons Harris on 22 February 2002 however given the conclusion I have reached about these proceedings I do not need to refer to that.
The application came before District Registrar Wood and he has referred it to me for hearing. The applicant now seeks a further adjournment. He says that he obtained legal advice during the week and he needs to obtain some further documents. That application for adjournment is opposed. It is opposed on two grounds. The first being that this is the third time the matter has been before the court and therefore should not be adjourned again. The applicant was given the opportunity to rectify deficiencies in the application when it first came before the court on 5 February 2002. He then did not appear on

25 February 2002. The applicant has said to me this morning that he was in Sydney the previous week and could not get a plane back and was unable to attend court. That is merely stated from the bar table and is not put on affidavit.
It is apparent from what I have recited about the applications that as things currently stand the Rules have not been complied with. Rule 30.02 of the Federal Magistrates Court Rules 2001 sets out the requirements on the application to set aside a bankruptcy notice. Subrule (2) requires that the application be accompanied by a copy of the bankruptcy notice, an affidavit stating the grounds in support of the application, the date when the bankruptcy notice was served on the applicant and a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application. That rule has not been satisfied.
As I have said, the most recent application that the applicant has put before the court seeks to have the applicant's name changed from Adam John Skrzypczyk to Online Car Care Pty Ltd. Having listened to what Mr Skrzypczyk says it is apparent that this application cannot succeed. The judgment upon which the bankruptcy notice is based is a judgment against him personally. Any claims that exist which Mr Skrzypczyk can pursue either against Natural Stone Plant Hire Pty Ltd or its director, Mr Harris, are from what Mr Skrzypczyk has told me, claims by companies. It would seem from the most recent application that the company Online Car Care Pty Ltd does seek to pursue a claim.
He also has told me that the claim in the Magistrates Court for which judgment was obtained on 14 May 2001 should have been a claim against one or other of the companies with which he is associated.

I am not entirely sure which one. No application has been made to set aside that judgment and I find it difficult to discern the basis upon which Mr Skrzypczyk says that is a claim against a company. It may be that he does have a defence to the claim but I find it difficult to see how that is a claim against the company.
In those circumstances I have to exercise my discretion on the application to adjourn the proceedings. Firstly, I will not exercise my discretion to adjourn and will refuse the adjournment. The application is in disarray. It is not even an application made against the company, Natural Stone Plant Hire Pty Ltd, in whose favour the bankruptcy notice was issued. The Deputy Registrar on 5 November 2001 gave the applicant the opportunity to apply to amend the respondent's name but what has come before the court is an application to amend the applicant's name. That has been done late. It should have been done prior to 18 February 2002 and dealt with on 25 February 2002. There is nothing on affidavit saying why the applicant was not at court on 25 February 2002.
As I have said, the application which is then made is an application to amend the name of the applicant. I am not at all confident that any adjournment would result in any of those matters being rectified. Secondly, I find it difficult to see how this application could succeed in any event. What the applicant is saying is that this is a dispute between companies so that any set-off is not a set-off by the applicant. From what he has told me from the bar table I cannot discern the basis upon which he says that the judgment in the Melbourne Magistrates Court should have been against a company and not against him. In the affidavits I have before me, there is not a basis for an argument that the judgment in the Melbourne Magistrates Court or the proceedings in the Melbourne Magistrates Court should have been against a company.
In those circumstances, I refuse the adjournment. There is an inadequate explanation of failure to comply with directions given on

5 February 2002, which has left the application in a form in which it could not proceed anyway. Secondly, I can see no basis for the application succeeding in any event. It follows from what I have already said that the application must be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: