Slater v Conley

FEDERAL COURT OF AUSTRALIA

Slater v Conley [2019] FCA 909

File number(s):

NSD 147 of 2019

Judge(s):

JAGOT J

Date of judgment:

5 June 2019

Catchwords:

BANKRUPTCY – whether bankruptcy notice should be set aside – whether there has been an overstatement in terms of s 41(5) of the Bankruptcy Act 1966 (Cth) – application dismissed

Legislation:

Bankruptcy Act 1966 (Cth) s 41(5)

Cases cited:

Flint v Richard Busuttil & Co Pty Limited [2013] FCAFC 131

Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255

Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337

Date of hearing:

5 June 2019

Date of last submissions:

5 June 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

17

Counsel for the Applicant:

Mr T Johnson

Solicitor for the Applicant:

Beazley Lawyers

Counsel for the Respondent:

Mr M Wells

Solicitor for the Respondent:

Colin Daley Quinn Solicitors

ORDERS

NSD 147 of 2019

BETWEEN:

LISA CATHERINE SLATER

Applicant

AND:

MICHAEL LEADER CONLEY

Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	5 JUNE 2019

THE COURT ORDERS THAT:

1.The application dated 5 February 2019 be dismissed.

2.The applicant pay the respondent’s costs of the application as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1. This is an application to set aside bankruptcy notice BN231741 issued on 30 November 2018. 

2. The background to the matter is set out in some detail in the written submissions for the respondent.  In summary, the applicant commenced proceedings in the Family Court of Australia in January 2013.  In so doing, the applicant instructed Michael Conley Lawyers to act for her.  In May 2016 the Family Court proceedings settled on a final basis and orders were entered into by consent.  Those orders included a mechanism by which the husband was to pay a monthly payment to the firm of Michael Conley Lawyers by way of payment of its fees. 

3. The firm, Michael Conley Lawyers, continued to act for the applicant and performed work on her behalf relating to the implementation of the Family Court orders until August 2017.  The husband ceased making payments required under the Family Court orders in September 2017.  The applicant took no steps to enforce those orders and, on the evidence, the firm, Michael Conley Lawyers, then commenced proceedings to recover outstanding legal costs following a costs assessment. 

4. On 13 August 2018 the New South Wales District Court issued a judgment ordering the applicant to pay the firm the sum of $462,266.27.  There is evidence from Mr Conley that the applicant has made no payments in satisfaction of this judgment debt.  The bankruptcy notice was then issued on 30 November 2018 and served on the applicant on 16 January 2019. 

5. The sole ground upon which the bankruptcy notice is sought to be set aside is s 41(5) of the Bankruptcy Act 1966 (Cth) (the