Van Gorp v Davy

In the Federal Court, Van Gorp filed an application for review of a decision by Registrar Tesoriero, who had dismissed Van Gorp's application to set aside a bankruptcy notice. The bankruptcy notice, issued by Davy, attached a costs assessment order made by the Registrar in the Family Court of Australia. However, the bankruptcy notice did not attach the judgment to which the costs assessment order related. The central issue was whether the costs assessment order was a "final judgment" or "final order" within the meaning of section 40(1)(g) of the Bankruptcy Act 1966 (Cth). The court also considered whether the application for review was otiose, given Van Gorp's failure to apply for a stay of the Registrar's order or an extension of time for compliance with the bankruptcy notice.

The court held that it was necessary to consider de novo Van Gorp's application to set aside the bankruptcy notice. It found that the Registrar's orders dismissing the application to set aside the bankruptcy notice and setting aside the bankruptcy notice itself were set aside. The court reasoned that, in a proper case, the court could extend time for compliance with a bankruptcy notice and set aside the declaration made by the primary judge, even if an act of bankruptcy had already occurred. Furthermore, the constitutional imperative that the exercise of delegated powers by a Registrar be subject to review by a judge of the Court could not be satisfied if no review was available because an act of bankruptcy had already occurred. The court found that Van Gorp had a counterclaim, set-off, or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final judgment or final order, and thus it was in a position to extend time for compliance with the Bankruptcy Notice under section 41(6A) and to set aside both the Registrar's decision and the Bankruptcy Notice.

The final orders of the court were that the Registrar's orders made on 6 July 2016 were set aside, the bankruptcy notice issued on 29 June 2015 was set aside, and Davy was to pay Van Gorp an amount equal to the sum of the filing fees incurred by him in relation to his application to set aside the bankruptcy notice and in relation to these proceedings. Entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.