Snelgrove v Roskell

[2006] FMCA 503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SNELGROVE v ROSKELL [2006] FMCA 503

BANKRUPTCY – Contested creditor’s petition – debtor disputing judgment debt – defects in bankruptcy notice supporting the creditor’s petition – incorrect provision under which interest claimed – whether the defect is irremediable considered – judgment certificate stating no interest payable – whether the bankruptcy notice is confusing considered.

Bankruptcy Act 1966 (Cth), ss.41, 306
Local Court (Civil Claims) Act 1970 (NSW), s.39
Legal Profession Act 1987 (NSW), s.208E

Adams v Lambert [2006] HCA 10
Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Ex parte Johnson; Re Johnson (1883) 25 ChD 112
Kleinwort Benson Ltd v Crowl (1988) 165 CLR 71
Pillai v Comptroller of Income Tax [1970] AC 1124
Re Collier; ex parte Dan Rylands Ltd (1891) 8 Mor 80
Re McCormac; ex parte Taylor (1985) 10 FCR 162
Re Gray; ex parte Person to Person Financial Services Pty Ltd (1980) 48 FLR 379

Re Williams; ex parte Alberton Electrical Services Pty Ltd (1982) 43 ALR 552

Applicant: JOHN ANTHONY SNELGROVE

Respondent: DAVID ROSKELL

File Number: SYG1043 of 2005

Judgment of: Driver FM

Hearing date: 12 August 2005

Date of Last Submission: 26 April 2006

Delivered at: Sydney

Delivered on: 6 June 2006

REPRESENTATION

Counsel for the Applicant: Mr B DeBuse

Solicitors for the Applicant: Curwoods Lawyers

The Respondent appeared in person

ORDERS

1. The creditor’s petition filed on 26 April 2005 is dismissed.

2. The Court declares that bankruptcy notice NN3366 of 2004 is invalid.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1043 of 2005

JOHN ANTHONY SNELGROVE

Applicant

And

DAVID ROSKELL

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. By a creditor’s petition filed on 26 April 2005 Mr Snelgrove seeks a sequestration order against Mr Roskell.  Mr Snelgrove verifies the contents of the petition by affidavit.  He also relies upon affidavits of search and debt and affidavits of service of the bankruptcy notice relied upon[1].  On 15 June 2005 Registrar Tesoriero made orders for substituted service of the creditor’s petition upon Mr Roskell.  Mr Roskell was served with the petition in accordance with that order[2].  A further affidavit of Rachel Therese Menassa filed on 5 July 2005 verifies service of the petition, together with its supporting affidavits and the affidavit of service of the bankruptcy notice.

   [1] bankruptcy notice NN3366/04

   [2] see the affidavit of Mark Adam Stephenson filed on 5 July 2005

2. Mr Roskell filed a notice of appearance on 28 July 2005 and on the same day filed a notice of intention to oppose the petition, essentially upon the basis that he asserts that the debt claimed is not owed by him.  Mr Roskell asserts that the debt is for legal services provided to a company called R&G Deli Holdings Pty Ltd and that, although he was the managing director of the company, he is not personally liable for its debts.

3. In a lengthy affidavit filed on 27 July 2005, Mr Snelgrove deposes as to the facts and circumstances leading to the creditor’s…