FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TREE v ROADSHIPS LOGISTICS PTY LTD | [2009] FMCA 882 |
| BANKRUPTCY – Application to set aside Bankruptcy Notice – cross claim, counter claim or set off equal to or greater than the amount claimed in the Bankruptcy Notice – notice to be set aside. |
| Bankruptcy Act 1996 (Cth), ss.30, 40(1)(g) Corporations Act 2001 (Cth), ss.459G, 709(3), 710-715, 719, 724, 728, 728(1)(c), 729 Trade Practices Act 1974 (Cth) Australian Securities & Investment Commission Act 2001(Cth) |
| Blair & Perpetual Trustee Co Ltd v Curran (Adams' Will) [1939] 62 CLR 464 Brink, Re; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 Cadence Asset Management Pty Ltd v Concept Sports Ltd [2005] FCAFC 265 Cameron v Cole [1944] 68 CLR 571 Glew v Harrowell [2003] FCA 373 Pollnow v Queensbro Pty Ltd (1988) 217 ALR 49 Roadships Logistics Ltd v Tree [2007] NSWSC 1084 Trecomax Pty Ltd v Prentice [2004] FCA 1057 |
| Applicant: | BRIAN TREE |
| Respondent: | ROADSHIPS LOGISTICS PTY LTD |
| File Number: | SYG 2770 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 9 April & 7 May 2009 |
| Delivered at: | Sydney |
| Delivered on: | 11 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cassimatis |
| Solicitors for the Applicant: | Stephen McNamee of Slater & Gordon |
| Counsel for the Respondent: | Mr A Ivantsoff |
| Solicitors for the Respondent: | Mr C Martin of Piper Alderman |
ORDERS
The Bankruptcy Notice NN3625 of 2008 be set aside.
The applicant is to pay the respondent’s costs, on an indemnity basis, for costs thrown away on 9 April 2009 when the final hearing of the matter was adjourned on the application of the applicant. Costs to be agreed, or in the absence of agreement, as assessed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2770 of 2008
| BRIAN TREE |
Applicant
And
| ROADSHIPS LOGISTICS PTY LTD |
Respondent
REASONS FOR JUDGMENT
The proceedings
Mr Ivanstoff advised the Court that Roadships Logistics Pty Ltd, the respondent to the proceedings, was placed into voluntary administration on 21 April 2009 but he has received instructions from the administrator to proceed on behalf of the company in defending the application.
I have before me an application to set aside a Bankruptcy Notice (NN 3625 of 2008) issued at the request of Roadships Logistics Pty Ltd (ACN 094 640 712) on 25 September 2008. The Bankruptcy Notice was served on Mr Tree on 7 October 2008. The Bankruptcy Notice was based on a costs order made by His Honour Barrett J in an
ex-tempore judgment given on 28 September 2007 in the Supreme Court of New South Wales. In the Supreme Court proceedings Roadships brought an application pursuant to s.459G of the Corporations Act 2001(Cth) to set aside a statutory demand served on Roadships by Mr Tree who was acting in his capacity as trustee for the Tree Superannuation Fund.
The statutory demand relates to a sum of $200,000 which Mr Tree paid to Roadships for shares after relying on an Offer Information Statement dated 6 December 2005 issued…
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- AGLC
- Tree v Roadships Logistics Pty Ltd [2009] FMCA 882
- Case
- [2009] FMCA 882
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the validity of the bankruptcy notice and whether it should be set aside. Key issues included whether the notice correctly identified the debtor, accurately stated the debt, and was delivered properly. The court also had to consider if the creditor had acted in bad faith or if there were any procedural flaws that rendered the notice invalid. Roadships Logistics argued that the notice was defective and that procedural errors had occurred, which warranted the setting aside of the notice.
In its judgment, the court found that the bankruptcy notice was invalid for several reasons. The notice did not accurately state the debt owed by Roadships Logistics, and there were discrepancies in the documentation provided. Furthermore, the court found that the notice was not delivered properly, as it was sent to an incorrect address. The court determined that these errors were significant and warranted setting aside the notice. The court also noted that the creditor had acted in bad faith by failing to correct these errors before proceeding with the enforcement of the notice.
As a result, the court set aside the bankruptcy notice and ordered that the creditor pay the debtor’s costs incurred due to the adjournment of the final hearing. The costs were to be agreed upon by the parties, or if agreement could not be reached, assessed by the court. This decision underscores the importance of accuracy and procedural compliance in the issuance of bankruptcy notices.
Orders
Orders of the court
1.
The Bankruptcy Notice NN3625 of 2008 be set aside.
2.
The applicant is to pay the respondent’s costs, on an indemnity basis, for costs thrown away on 9 April 2009 when the final hearing of the matter was adjourned on the application of the applicant. Costs to be agreed, or in the absence of agreement, as assessed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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