Thomas v St George Bank Ltd

FEDERAL COURT OF AUSTRALIA

Thomas v St George Bank Ltd [1999] FCA 166

MARK BERNARD THOMAS v ST GEORGE BANK LIMITED

NG 8442 of 1998

LINDGREN J
18 FEBRUARY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8442 OF 1998

BETWEEN:	MARK BERNARD THOMAS Applicant
AND:	ST GEORGE BANK Respondent
JUDGE:	LINDGREN J
DATE OF ORDER:	18 FEBRUARY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The respondent to the motion (applicant in the proceeding) pay the costs of the applicant on the motion (respondent in the proceeding) of the proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8442 OF 1998

BETWEEN:	MARK BERNARD THOMAS Applicant
AND:	ST GEORGE BANK LIMITED Respondent

JUDGE:	LINDGREN J
DATE:	18 FEBRUARY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. There is before the Court a motion brought by notice of motion filed 5 February 1999 by the respondent (“the Bank”) for summary dismissal of Mr Thomas’s application for an order setting aside a bankruptcy notice.  The Bank must satisfy the test for summary dismissal, recognised in many cases, of establishing clearly that the proceeding does not deserve a final hearing because it plainly will not succeed.

   Procedural background

2. The Bank issued a bankruptcy notice on 21 September 1998, No 1895 of 1998  which was based on a judgment in the Local Court at Kogarah for $7,600.88 obtained on 21 July 1998.  The amount claimed in the bankruptcy notice was $7,713.95. The debt was a credit card debt.

3. The bankruptcy notice was served on 11 December 1998 and expired on 1 January 1999.  On 23 December 1998 Mr Thomas filed his application by which the present proceeding was commenced. The application was returnable on 6 January 1999.  At the same time Mr Thomas filed an affidavit in support. Also on 23 December 1998 a Registrar made an order extending the time for compliance with the bankruptcy notice to 6 January 1999, that is, the return date of the application.

4. On 6 January 1999 Mr Thomas consulted solicitors Bruce and Stewart. On that day, over the Bank’s objection, I stood over the application to 11 February 1999, but no further order extending the time for compliance was made and the matter has proceeded throughout on the footing that there either was or was not an effective invocation of subs 41(7) of the Bankruptcy Act1966 (Cth) to which I shall refer further below.

5. On 6 January 1999 I gave the Bank leave to file by 5 February a notice of motion returnable on 11 February seeking summary dismissal.  I also directed Mr Thomas to file and serve by 29 January 1999 a document identifying by points of claim the nature of the counter-claim, set-off or cross demand on which he relied and an affidavit in support.  Finally, I noted that the Court had not determined…