Udovenko v Mitchell

[1997] FCA 1312

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Appeal from sequestration orders - petitioning creditor a solicitor recovering fees and disbursements from former clients where bills for costs and disbursements failed to comply with s 198 (now s 192) of the Legal Profession Act 1987 (NSW) - whether waiver by appellants of requirements of s 198 - whether respondent’s claim sufficiently established and quantified to constitute a debt “payable either immediately or at a certain future time”.

Bankruptcy Act 1966 (Cth) ss 44(1)(b), 52(2)
Legal Profession Act 1987 (NSW) s 192 (formerly s 198)

Corney v Brien (1951) 84 CLR 343, appl
Dodd v Gillis (1989) 16 NSWLR 623, dist
Jarena Pty Ltd v Sholl Nicholson Pty (1996) 136 ALR 427, refd
Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177, refd
Re Devy; Ex parte BBC Hardware Ltd (1996) 67 FCR 355, appr
Wren v Mahony (1972) 126 CLR 212, appl

MICHAEL UDOVENKO & ORS v ALAN BERNARD MITCHELL
NG 187 of 1997

JUDGES:      DAVIES, FOSTER & CARR JJ
DATE:          28 NOVEMBER 1997
PLACE:        SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 187  of   1997

BETWEEN:

MICHAEL UDOVENKO
FIRST APPLICANT

HELEN UDOVENKO
SECOND APPLICANT

WOLODYMYR UDOVENKO
THIRD APPLICANT

AND:

ALAN BERNARD MITCHELL
RESPONDENT

CORAM:

DAVIES, FOSTER & CARR JJ

DATE OF ORDER:

28 NOVEMBER 1997

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. Orders 2, 3, 4, 5 and 6 made on 19 February 1997 be set aside and that in lieu thereof      it be ordered that the petition be dismissed with costs.

1. The respondent pay the appellants’ costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 187 of 1997

BETWEEN:

MICHAEL UDOVENKO
FIRST APPELLANT

HELEN UDOVENKO
SECOND APPELLANT

WOLODYMYR UDOVENKO
THIRD APPELLANT

AND:

ALAN BERNARD MITCHELL
RESPONDENT

CORAM:	DAVIES, FOSTER & CARR JJ
DATE:	28 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Davies J:  I have had an opportunity to read the reasons for judgment prepared by Carr J.  I agree with the views expressed by his Honour and with the orders proposed but would add a few words of my own. 

The learned trial Judge expressed the crux of his judgment when his Honour said:

"... I exercise the discretion vested in me against going behind the judgment for the purpose of ascertaining whether there is an indebtedness of the Debtors to Mitchell for costs."

However, the matter was not one of pure discretion. Paragraph 44(1)(b) of the Bankruptcy Act 1966 (Cth) provides:

"A creditor's petition shall not be presented against a debtor unless:

...

(b)       that debt, or each of those debts, as the case may be:

(i)is a liquidated sum due at law or in equity or partly at law and partly in equity; and

(ii)       is payable either immediately or at a certain…