Turner v Mortgage Elimination Services Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TURNER v MORTGAGE ELIMINATION SERVICES PTY LTD & ANOR [2009] FMCA 27

BANKRUPTCY – Application to set aside a Bankruptcy Notice – application dismissed.

Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1996 (Cth), reg.16
Corporations Act 2001 (Cth), s.553C
Legal Profession Act 2004 (NSW), Division 11, Subdivision 4

Skalkos v T & S Recoveries Pty Ltd [2004] FCAFC 321
Universal Financial Group v Mortgage Elimination Services [2006] NSWSC 1132

Applicant: WARREN DONALD TURNER

First Respondent: MORTGAGE ELIMINATION SERVICES PTY LTD (IN LIQ.) (ACN 057 065 504)

Second Respondent: ALAN LEWIS IN HIS CAPACITY AS LIQUIDATOR OF MORTGAGE ELIMINATION SERVICES PTY LTD (IN LIQ.)

File number: SYG 1326 of 2008

Judgment of: Lloyd-Jones FM

Hearing date: 12 August 2008

Delivered at: Sydney

Delivered on: 23 January 2009

REPRESENTATION

Solicitors for the Applicant: Foleys Solicitors

Counsel for the Respondents: Mr S Golledge

Solicitors for the Respondents: Hewitts Commercial Lawyers

ORDERS

1. The application to have Bankruptcy Notice NN 0304 of 2008 set aside is dismissed.

2. The applicant is to pay the respondents costs as agreed or, in the absence of agreement, to be assessed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1326 of 2008

WARREN DONALD TURNER

Applicant

And

MORTGAGE ELIMINATION SERVICES PTY LTD (IN LIQ.) (ACN 057 065 504)

First Respondent

ALAN LEWIS IN HIS CAPACITY AS LIQUIDATOR OF MORTGAGE ELIMINATION SERVICES PTY LTD (IN LIQ.)

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. By an application filed on 23 May 2008, Warren Donald Turner (the applicant debtor) seeks to have the Bankruptcy Notice NN 0304 of 2008 issued by Mortgage Elimination Services Pty Ltd (in liquidation) (CAN 057 065 504) and Alan Lewis (liquidator of Mortgage Elimination Services Pty Ltd (in liquidation)) set aside.  Mr Turner claims that:

   a)there was invalid service of the Bankruptcy Notice;

   b)the Bankruptcy Notice is defective; and

   c)the amount stated as owing in the Bankruptcy Notice is incorrect.

   This application is opposed by the respondent creditors.

2. The bases of Mr Turner’s argument to have the Notice set aside are that:

   a)Service of the Bankruptcy Notice was defective in that the Notice was founded by only part of a cost determination obtained by the respondents.  Mr Turner complains that the creditors had two judgments against him but only one had been relied upon to found the Notice.

   b)The copy of the Notice Mr Turner received was subject to a substituted service order, which was not attached to the Notice left at his East Maitland residence.

   c)The Notice contained an overstatement because Mr Turner was entitled to a credit against or reduction in the amount of the judgment to one of the creditors. 

   d)Mr Turner has a set-off or cross claim.

3. The Bankruptcy Notice was issued on 1 February 2008 and it is claimed was it forwarded by post to Mr Turner’s East Maitland address.  The issue of service by mail is discussed below.  The respondent creditors claim a debt of $135,433.82 based on the District Court of New South Wales judgment/order made…