Trazblend v Simon Mathews Aviation & Anor (No 2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRAZBLEND v SIMON MATHEWS AVIATION & ANOR (No.2) [2007] FMCA 373

TRADE PRACTICES – Application to set aside judgment − delay − where judgment in the substantive proceedings was entered against the respondent after the respondent failed to appear − where the judgment was used to ground a bankruptcy notice and later a bankruptcy petition − where the respondent failed to comply with the bankruptcy notice − where the respondent claims to have a defence to the substantive proceedings − where the summary judgment was stayed for 14 days allowing the respondent leave to move the court to set aside the orders made − where the respondent made no such application − where there was delay in filing the application to set aside the orders made − whether the respondent has a defence to the substantive action − whether the respondent has satisfactorily explained the delay in bringing the application to set aside judgment.

Trade Practices Act 1984, s.82(1)

Trazblend v Simon Mathews Aviation & Anor [2006] FMCA 452
KM & A Chadwick Pty Limited v Yeung (unreported) June 1995
Evans v Bartlam [1937] AC 473
Maher v Commonwealth Bank of Australia [2004] FCA 248
Coffey v Centrelink & Anor (2004) FCA 188
Deputy Commissioner of Taxation v Johnston (2006) 230 ALR 575
Yankee Doodles Pty Ltd v Blemvale Pty Ltd (Unreported, Writ No 78 of 1998, Supreme Court of Queensland)
Davison v Queensland [2006] HCA 21
D’orta-Ekenaike v VLA (2005) 214 ALR 92

Applicant: TRAZBLEND PTY LIMITED
ACN 002 171 664

First Respondent: SIMON MATHEWS AVIATION PTY LTD

Second Respondent: SIMON PETER MATHEWS

File Number: SYG 2416 of 2005

Judgment of: Raphael FM

Hearing date: 12 March 2007

Date of Last Submission: 12 March 2007

Delivered at: Sydney

Delivered on: 23 March 2007

REPRESENTATION

Solicitors for the Applicant: Marsdens

Counsel for the Respondents: Ms L Csillag

Solicitors for the Respondents: Anthony Peterson & Co

ORDERS

1. Application to set aside judgment dismissed.

2. Applicant (Simon Peter Mathews) to pay the costs of the respondent (Trazblend Pty Limited) to the application to set aside judgment to be assessed in accordance with Part 21, Rule 21.02(2)(b) and Schedule 1 of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2416 of 2005

TRAZBLEND PTY LIMITED
ACN 002 171 664

Applicant

And

SIMON MATHEWS AVIATION PTY LTD

First Respondent

SIMON PETER MATHEWS

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Simon Peter Mathews wishes the court to set aside a judgment entered against him on 30 March 2006 that was used to ground a bankruptcy notice and later a bankruptcy petition against him.  He failed to comply with the bankruptcy notice, although he says he did not receive it.  The present application was brought following the service upon him of the bankruptcy petition in December 2006.  Mr Mathews claims that he has a defence to the substantive proceedings previously heard in this court which he should now be allowed to agitate.

2. Throughout these reasons…