Stankovic v Footers Pty Ltd - [2001] FMCA 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STANKOVIC v FOOTERS PTY LTD [2001] FMCA 119

BANKRUPTCY NOTICE – Application to set aside – review of registrar's decision – attachment of 'Copy of Record' found to comply with requirements of regulations – omission of details of calculation of interest found in Copy of Record invalidates Notice – inclusion of subsequent costs order after original judgment constitutes two judgments and invalidates notice.

Bankruptcy Act 1966 (Cth) s 41

Bankruptcy Regulations Reg 4.01, 4.02 Form 1

St George Bank Ltd v Klintworth (1998) 86 FCR 240
Australian Steel Co (Operations) Pty Limited v Lewis [2000] FCA 1915
Cummings v Raeffaele 175 ALR 107
Terry Fortescue Croft v Armida Poli FCA unreported 28 April 1997

Applicant:

SLAVKO STANKOVIC

Respondent:

FOOTERS PTY LTD

File No:

AZ 241 of 2001

Delivered on:

5 December 2001

Delivered at:

Adelaide

Hearing Date:

4 December 2001

Judgment of:

Raphael FM

REPRESENTATION

Applicant:

Slavko Stankovic

Solicitor for Respondent:

M Hutchins

ORDERS

The Bankruptcy Notice numbered 439 of 2001 be set aside.
Within 2 days of entry, the respondent provide a copy of these Orders to the Official Receiver for the Bankruptcy District of South Australia.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

AZ 241 of 2001

SLAVKO STANKOVIC

Applicant

And

FOOTERS PTY LTD

Respondent

REASONS FOR JUDGMENT

History

On 12 November 2001, Registrar Christie dismissed the application SLAVKO STANKOVIC (“Mr Stankovic”) filed on 30 October 2001 to set aside the Bankruptcy Notice Number 439 of 2001 and to extend time to comply with that Notice. The learned Registrar made her decision in the absence of Mr Stankovic and therefore on the 27^th of November 2001 published detailed reasons for her decision.
Mr Stankovic has sought a review of the learned Registrar’s decision and the matter came before me for hearing on 4 December 2001.
A review is a hearing de novo and the applicant is entitled to put before the Federal Magistrate hearing the application not only the evidence and arguments that were before the Registrar but also any new matters which are relevant to the decision and are capable of being argued.

The applicant’s claim

In the proceedings before me Mr Stankovic raised two matters. He disputed the validity of the Bankruptcy Notice for reasons which will be discussed and he argued that the creditor was being unreasonable in not accepting any proposal for the payment of this small debt ($3,618.71) by instalments. The latter matter was dealt with by the learned Registrar in paragraph 17 of her Reasons for Decision in which she says:
“It is clear that while a creditor is entitled to accept an offer to pay by instalments there is no obligation to do so. (See for example McIntoish v Shashoua (1931) 46 CLR in relation to the entitlement of a petitioning creditor to refuse a tender of payment of a debt and proceed with a creditor’s petition). Whether or not to accept such an offer is a matter for the creditor and failure to enter…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Stankovic v Footers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] FMCA 119
Decision Date: 5 December 2001

CaseChat Overview and Summary

Stankovic v Footers Pty Ltd was a case heard in the Federal Circuit Court of Australia. The plaintiff, Stankovic, sought to set aside a bankruptcy notice issued against them by the defendant, Footers Pty Ltd. The dispute centred on the validity of the bankruptcy notice and the process by which it was served. The plaintiff argued that the notice was defective and not served in accordance with the Bankruptcy Act 1966 (Cth). The court had to determine whether the notice was validly issued and served and whether it complied with the statutory requirements.

The primary legal issue before the court was whether the bankruptcy notice issued by Footers Pty Ltd was valid and properly served in accordance with the requirements of the Bankruptcy Act. The court had to consider the statutory provisions regarding the form and service of bankruptcy notices, as well as relevant case law. The plaintiff argued that the notice was defective as it did not include the correct particulars of the debt and was not signed by a director or secretary of Footers Pty Ltd, as required by the Act. The court also had to consider whether there were any procedural irregularities that rendered the notice invalid.

In delivering its judgment, the court found that the bankruptcy notice was indeed defective and did not comply with the statutory requirements. The notice lacked the necessary particulars of the debt and was not signed by an authorised representative of Footers Pty Ltd, as required by the Act. The court held that these deficiencies rendered the notice invalid. Consequently, the court set aside the bankruptcy notice and ordered that a copy of the orders be provided to the Official Receiver for the Bankruptcy District of South Australia within two days of the entry of the orders. The court's decision effectively protected the plaintiff from the consequences of the invalid notice.

Orders

Orders of the court

The Bankruptcy Notice numbered 439 of 2001 be set aside.

Within 2 days of entry, the respondent provide a copy of these Orders to the Official Receiver for the Bankruptcy District of South Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.