Thyssen v Maniotis and Anor.

FEDERAL MAGISTRATES COURT OF AUSTRALIA

THYSSEN v MANIOTIS & ANOR  [2001] FMCA 60

BANKRUPTCY – Application to set aside Bankruptcy Notice – Stay of Supreme Court Action by Debtor – whether cross demand for purpose of
s 41(7) Bankruptcy Act – whether ‘effective’ cross demand if claim stayed

COSTS – where Application dismissed – Costs before Registrar – non-attendance by Applicant – assumption of consent adjournment – no consent orders executed

Bankruptcy Act s 40(1)(g) and s 41(7)

Applicant: CON GEORGE THYSSEN

Respondents: BASIL MANIOTIS & ANOR

File No: MZ490 of 2001

Delivered on: 17 July 2001

Delivered at: Melbourne

Hearing Date: 17 July 2001

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr S Gillespie-Jones

Solicitors for the Applicant: Law Partners

Counsel for the Respondents: Mr J Nolan

Solicitors for the Respondents: Leo Dimos & Associates

ORDERS

1. The notice of motion filed 13 June 2001 be dismissed. 

2. The applicant debtor to pay the respondent creditors' costs including reserved costs of the notice of motion to be taxed in default of agreement provided, however, that if a sequestration order is made against the applicant debtor based upon the bankruptcy notice which is the subject of this application, then the costs of the respondent creditor shall be costs in the petition.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MZ 490 of 2001

CON GEORGE THYSSEN

Applicant

And

BASIL MANIOTIS AND ANOR

Respondents

REASONS FOR JUDGMENT

Ex Tempore

1. This is an application by Con George Thyssen, (the debtor), to set aside a bankruptcy notice.  The application filed on 2 February 2001 seeks to set aside a bankruptcy notice dated 12 January 2001.  The bankruptcy notice in this matter is a notice based upon a debt which is said to have arisen from orders made for costs in interlocutory matters before the Supreme Court of Victoria.  The application is one which was heard and the subject of a decision made by the registrar on

   
   

   4 June 2001.  I should indicate for the sake of completeness that on that day orders were made in accordance with the amended order that the application be dismissed and the applicant pay the respondent's costs of and incidental to the application to be taxed in default of agreement. 

2. The applicant in these proceedings by notice of motion filed 13 June 2001 has sought an order that the orders of the registrar made on

   
   

   4 June 2001 be vacated.  There was some discussion about the reason why the orders were made by the registrar in the absence of the applicant.  It seems to me that for present purposes it is not necessary for me to analyse those circumstances or indeed make any particular findings, as in my view this notice of motion which seeks a review of the decision is a hearing de novo and I am satisfied that I am entitled to give the applicant to argue his case in support of the application to set aside the bankruptcy notice based upon material which was not only…