Tyndall v Matthews - [2010] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TYNDALL v MATTHEWS & ANOR

[2010] FMCA 976

BANKRUPTCY – Application setting aside bankruptcy notice – application for extension of time for compliance with bankruptcy notice – alleged defect in bankruptcy notice by understatement of interest – interest calculation by reference to regulation – not likely to mislead – allegation of abuse of power in issue of bankruptcy notice.

Acts Interpretation Act 1901
Bankruptcy Act 1966
Civil Procedure Act 2005

Anthony Hordern& Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
Kleinwort Benson Australia Ltd v Crowl (1998) 165 CLR 71
Re Gualtieri; Ex parte Martin & Savage Pty Ltd (1995) 58 FCR 55
Re HB [1904] 1 KB 94
Re Manion; Ex parte Deputy Commissioner of Taxation (1979) 37 FLR 78
Re Munson; Ex parte Deputy Commissioner of Taxation (1977) 29 FLR 479
Re Preston Ex parte Commercial Banking Company of Australia Ltd B8200394
Re Schierholter; Ex parte Geis (1978) 32 FLR 22
Re Sterling; Ex parte Esanda Limited (1980) 44 FLR 125
Sandell v Porter (1966) 115 CLR 666
Slack v Bottoms English Solicitors(A. Partnership) [2002] FCA 1445
Spottiswood v Equititrust Limited [2010] FMCA 819

Applicant:

JONATHAN BALCHIN DE VERE TYNDALL

Respondent:

JOHN JOSEPH MATTHEWS AND ANOR

File Number:

BRG 1105 of 2010

Judgment of:

Burnett FM

Hearing date:

23 November 2010

Date of Last Submission:

23 November 2010

Delivered at:

Brisbane

Delivered on:

24 November 2010

REPRESENTATION

The Applicant appeared on his own behalf

Counsel for the Respondent:

Mr Simpson

Solicitors for the Respondent:

Somerville Laundry Lomax Solicitors

ORDERS

That the application filed 1 November 2010 be dismissed.
That the applicant pay the respondents’ costs of and incidental to the application to be assessed on a standard basis.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 1105 of 2010

JOHNATHAN BALCHIN DE VERE TYNDALL

Applicant

And

JOHN JOSEPH MATTHEWS AND ANOR

Respondents

REASONS FOR JUDGMENT

(Revised from transcript)

The applicant debtor seeks orders setting aside bankruptcy notice NN4206 of 2010, and for an extension of time for compliance with that notice. Although the debtor seeks relief in that regard, pursuant to sections 30(1) and section 33(1)(c) respectively, he has also applied for such relief pursuant to section 41(6A).
It is well settled that such an application is one grounded in section 41, and more specifically in the present instance, in terms of section 41(6A), and I proceed to determine the application on that basis; see generally Anthony Hordern& Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, as applied in Spottiswood v Equititrust Limited [2010] FMCA 819.
In this case, the bankruptcy notice was issued consequent upon a judgment entered by the respondent creditor, against the debtor in the District Court of New South Wales, on 19 May 2010, for a sum of $79,038.82 plus costs. The judgment made no express reference to interest.
On 29 September 2010, the Official Receiver issued the bankruptcy notice.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tyndall v Matthews

Details

AGLC: Tyndall v Matthews [2010] FMCA 976
Case: [2010] FMCA 976
Decision Date

CaseChat Overview and Summary

The case of Tyndall v Matthews was heard by Burnett FM in the Federal Magistrates Court of Australia. The applicant, Jonathan Balchin de Vere Tyndall, sought orders to set aside a bankruptcy notice issued against him and for an extension of time to comply with that notice. Tyndall argued that the notice was defective because it understated the interest due, that it was issued while the underlying judgment was stayed, and that the notice constituted an abuse of process. The respondents, John Joseph Matthews and another, defended the validity of the notice.

The legal issues before the court were whether the bankruptcy notice was defective, whether it was issued during a stay of execution, and whether its issuance constituted an abuse of process. The court examined the statutory requirements for bankruptcy notices under the Bankruptcy Act 1966 and considered relevant case law, including Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia and Kleinwort Benson Australia Ltd v Crowl.

The court found that although the bankruptcy notice understated the interest, the understatement did not mislead Tyndall as to the amount he needed to pay to comply with the notice. The court also determined that the notice was validly issued as the underlying judgment was no longer stayed by the time the notice was served. Lastly, the court concluded that the creditor did not abuse the process by issuing the bankruptcy notice, given Tyndall's solvency and the creditor's legitimate intent to pursue the debt. Consequently, the application was dismissed, and Tyndall was ordered to pay the respondents' costs.

Orders