Thomas v RAFTOPOULOS - [2020] FCCA 3515

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMAS v RAFTOPOULOS

[2020] FCCA 3515

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – bankruptcy notice defective – no final judgment or order attached – bankruptcy notice set aside.

Legislation:

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(2), 40(3), 306

Bankruptcy regulations 1996 (Cth), reg.4.02(1)
Federal Circuit Court Rules 2001 (Cth), r. 20.03
Uniform and Civil Procedure Rules 1999 (Qld), r.668

Cases cited:

ANZ Banking Group Ltd v Menso [2006] FMCA 1522

Franks v Warringah Council (2003) 131 FCR 281
Ivory v Telstra Corporation Limited & Ors [2010] FMCA 123
Smits v Lillas & Loel Lawyers Pty Ltd [2015] FCCA 1092

Applicant:

LUKE THOMAS

Respondent:

PETER RAFTOPOULOS

File Number:

BRG 1062 of 2019

Judgment of:

Judge Jarrett

Hearing date:

16 April 2020

Date of Last Submission:

18 December 2020

Delivered at:

Brisbane

Delivered on:

22 December 2020

REPRESENTATION

The Applicant in person via telephone link

Counsel for the Respondent:

Mr Trewavas

Solicitors for the Respondent:

SLF Lawyers

ORDERS

Set aside orders 2 and 3 of the orders made on 5 March, 2020;
Bankruptcy Notice Number BN247278 issued on 8 November, 2019 be set aside.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1062 of 2019

LUKE THOMAS

Applicant

And

PETER RAFTOPOULOS

Respondent

REASONS FOR JUDGMENT

On 8 November, 2019 the respondent caused the issue of a bankruptcy notice against the applicant. The bankruptcy notice had attached to it a costs assessor’s certificate issued on 25 October, 2019. The cost assessor’s certificate records that the cost assessor was appointed pursuant to an order of a Registrar dated 13 September, 2019. According to the certificate costs were assessed in the sum of $6,367.40.
By application made on 11 December, 2019, the applicant applied for an order that the bankruptcy notice be set aside. He also sought orders that:
a)the bankruptcy notice be set aside on grounds “the applicant has applied to set aside and/or stay the judgment or order in respect of which the Bankruptcy Notice was issued”;
b)that the bankruptcy notice “be set aside pursuant to the provisions of section 40(1)(g) of Bankruptcy Act 1966 (Cth) on the following grounds:
a.the applicant has a counterclaim, set off and/or cross demand.
b.the applicant has established that there are grounds for a counterclaim, set off and/or cross demand.
c.the counterclaim, set off and/or cross demand is greater than the (sic) that is claimed in the Bankruptcy Notice
d.The applicant did not have an opportunity to raise the counterclaim, set off and/or cross demand in the proceedings that resulted in the judgments or orders to which the Bankruptcy Notice relates.
e.the applicant has provided sufficient details of the counterclaim set-off and or cross demand on the basis of the details contained within the Applicant’s affidavit sworn on 7th December 2019 and any subsequent affidavit that is filed in these proceedings”
c)he also sought an order that the time for compliance with the bankruptcy notice be extended on the grounds that he had applied to set aside and/or stay the…

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.

Continue reading Thomas v RAFTOPOULOS

Details

AGLC: Thomas v Raftopoulos [2020] FCCA 3515
Case: [2020] FCCA 3515
Decision Date: 22 December 2020

CaseChat Overview and Summary

In *Thomas v Raftopoulos*, the applicant sought to set aside a bankruptcy notice issued by the respondent. The core of the dispute concerned the validity of the bankruptcy notice itself, with the applicant contending it was fundamentally flawed. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the bankruptcy notice complied with the requirements of the *Bankruptcy Act 1966* (Cth) and the *Bankruptcy Regulations 1996* (Cth). Specifically, the Court was required to determine if the notice was accompanied by a copy of the final judgment or order upon which it was based, as mandated by the legislation.

Judge Jarrett found that the bankruptcy notice was indeed defective because it was not accompanied by a copy of the final judgment or order. This omission was a material defect, rendering the notice invalid. The Court applied the principle that strict compliance with the statutory requirements for bankruptcy notices is necessary for their validity. Consequently, the Court ordered that the bankruptcy notice be set aside.

Orders