FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPOTTISWOOD v EQUITITRUST LIMITED | [2010] FMCA 819 |
| BANKRUPTCY – Review of Registrar’s decision – application to amend application to set aside bankruptcy – failure of initiating application to address s.41(7) requirements – application to amend sought to rely upon s.41(6A) – failed application to set aside judgment – abuse of process – s.41(5) defective bankruptcy notice – interaction of s.33, s.41(6A) and s.41(7). |
| Bankruptcy Act 1966 Federal Magistrates Court (Bankruptcy) Rules |
| Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Max Bernard Jules Brunninghausen v Michael Glavanics [1998] FCA 230 Guss v Johnstone (2000) 171 ALR 598 InThe Matter of Shaddock; Shaddock v Commonwealth Bank of Australia (1998) FCA 355 BC9801209 James v Abrahams (1981) 51 FLR 16 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Lindholdt v Meritt Madden Printing Pty Ltd [2002] FCA 260 Maxwell-Smith v S & E Hall Pty Limited, in the matter of Maxwell-Smith [2006] FCA 825 Re Bryant; Ex parte Bryant v Commonwealth Bank of Australia BC9405749 Re Brink; Ex Parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 Re James & Another: Ex parte Carter Holt Harvey Roofing(Aust) Pty Ltd (1993) 46 FCR 183 Re Sterling; Ex Parte Esanda Ltd (1980) 44 FLR 125 Re Vella; Ex Parte Seymour (1983) 67 FLR 287 at 288-289 Re Wilhelmsen; Ex parte Gould & Others (1986) 11 FCR 107 Thorpe v Bristile Ltd (1997) 80 FCR 330 |
| Applicant: | GRAHAM LINTON CLEMENT SPOTTISWOOD |
| Respondent: | EQUITITRUST LIMITED |
| File Number: | BRG 596 of 2010 |
| Judgment of: | Burnett FM |
| Hearing date: | 6 September 2010 |
| Date of Last Submission: | 6 September 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 27 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Peden |
| Solicitors for the Applicant: | Nyst Lawyers |
| Counsel for the Respondent: | Mr Handran |
| Solicitors for the Respondent: | Tucker & Cowen Solicitors |
ORDERS
Application by applicant for review of Order 1 of Orders made by Registrar Hetyey on 30 June 2010 be dismissed.
Application by respondents for review of Orders 2 and 3 of Orders made by Registrar Hetyey on 30 June 2010 be allowed.
Application filed 21 June 2010 be dismissed.
Application filed 27 July 2010 be dismissed.
That the Applicant pay the Respondent’s costs of and incidental to the application filed 21 June 2010, 27 July 2010 and for review of Order of Registrar Hetyey made 30 June 2010, including reserved costs, if any, to be assessed and that these obligations be subject to the sequestration.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 596 of 2010
| GRAHAM LINTON CLEMENT SPOTTISWOOD |
Applicant
And
| EQUITITRUST LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
To understand this application it is necessary to appreciate events before today. The creditor, Equititrust Ltd, successfully obtained a default judgment in the Supreme Court of Queensland against the debtor, Spottiswood for an amount of $5,428,226.61 on 7 August 2009. Despite the judgment, the debtor sat on his rights and did…
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- AGLC
- Spottiswood v Equititrust Limited [2010] FMCA 819
- Case
- [2010] FMCA 819
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Registrar had exceeded their jurisdiction in making certain orders, and whether the applicant's applications for review were properly before the court. Specifically, the court needed to determine whether the Registrar had acted beyond their authority by imposing certain conditions on the enforcement of financial obligations, and whether the applicant's applications for review were filed within the appropriate timeframe.
In dismissing the application for review of Order 1 and the earlier applications filed on 21 June 2010 and 27 July 2010, the court found that the Registrar had not exceeded their jurisdiction. The court held that the Registrar's orders were within their authority and that the applicant had not demonstrated any grounds for review. Furthermore, the court determined that the applications for review were not filed within the appropriate timeframe, rendering them invalid. Consequently, the court allowed the application for review of Orders 2 and 3, and ordered that the applicant pay the respondents' costs.
Orders
Orders of the court
1.
Application by applicant for review of Order 1 of Orders made by Registrar Hetyey on 30 June 2010 be dismissed.
2.
Application by respondents for review of Orders 2 and 3 of Orders made by Registrar Hetyey on 30 June 2010 be allowed.
3.
Application filed 21 June 2010 be dismissed.
4.
Application filed 27 July 2010 be dismissed.
5.
That the Applicant pay the Respondent’s costs of and incidental to the application filed 21 June 2010, 27 July 2010 and for review of Order of Registrar Hetyey made 30 June 2010, including reserved costs, if any, to be assessed and that these obligations be subject to the sequestration.
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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