Wainrit v Westpac Banking Corporation - [2004] FMCA 669

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAINRIT v WESTPAC BANKING CORPORATION

[2004] FMCA 669

BANKRUPTCY – Application to set aside Bankruptcy Notice – whether confusing or misleading – two orders for costs in different Courts.

Bankruptcy Act 1966, s.41(1)(b)

Kyriackou v Shield Mercantile Pty Ltd (2004) 207 ALR 393
Max Bernard Jules Brunninghausen v Michael Glavanics [1998] 230 FCA
(3 March 1998)
Andrew Cecil Thorpe v Bristile Pty Ltd [1997] 720 FCA (1 August 1997)

Applicant:

ALLEN WAINRIT

Respondent:

WESTPAC BANKING CORPORATION

File No:

MLG 867 of 2004

Delivered on:

6 October 2004

Delivered at:

Melbourne

Hearing Date:

27 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr A. Broadfoot

Solicitors for the Respondent:

Minter Ellison

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 867 of 2004

ALLEN WAINRIT

Applicant

and

WESTPAC BANKING CORPORATION

Respondent

REASONS FOR JUDGMENT

This is an application by Allen Wainrit (the applicant) seeking to set aside a bankruptcy notice VN384/04 (the bankruptcy notice) issued on 17 March 2004 wherein Westpac Banking Corporation (the creditor) claims that the debtor owes it the sum of $3849.20 as shown in the schedule.
The schedule annexed to it a general form of order of a Master of the Supreme Court of Victoria made on 16 February 2004. The order of the Master arose from an order made by Justice Byrne of the Supreme Court on 8 October 2003. In that order the court granted special leave to the applicant in these proceedings to bring an application before a judge and further ordered that a judgment entered in default of appearance on 8 May 2003 be set aside. It is noted the Applicant who was the defendant in that case appeared in person at the hearing and a further order was made in relation to a notice of appearance and defence. The significant order, however, made by Justice Byrne was that the Applicant in these proceedings pay the costs of the creditor of entering judgment and of the application to set aside the judgment. It was that order which then led to a taxation of costs by the Master of the Supreme Court and ultimately the order made was that the creditor's costs as taxed were allowed in the sum of $3349.20.
It will be evident that the amount of the order in the Supreme Court does not comprise the total amount of the debt owing as asserted in the bankruptcy notice and as shown in the schedule. An additional amount of $500 is referred to in the schedule set out below:

Column 1	Column 2
1. Amount of judgments or orders	$500
plus 2. Legal costs if ordered to be paid and a specific amount was not included in the judgments or orders (see Note 1 below)	$3349.20
plus 3. If claimed in this Bankruptcy Notice, interest accrued since the date of judgments or orders (see Note 2, below)	Nil
4. Subtotal	$3849.20
Less 5. Payments made and/or credits allowed since date…

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.

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Details

Case: [2004] FMCA 669
Decision Date: 6 October 2004

CaseChat Overview and Summary

Allen Wainrit (the applicant) brought an application before the Federal Magistrates Court seeking to set aside a bankruptcy notice issued by Westpac Banking Corporation (the creditor). The bankruptcy notice, VN384/04, was issued on 17 March 2004, asserting that the debtor owed the creditor $3849.20. The applicant contested the validity of the notice, arguing it was confusing and misleading, and sought to have it dismissed. The legal issues before the court were whether the bankruptcy notice was misleading and whether the creditor's actions constituted an abuse of process.

The court examined the various orders and costs involved, particularly focusing on the schedules and attachments to the bankruptcy notice. The applicant argued that the notice incorrectly combined costs from different court proceedings and jurisdictions, leading to confusion. The court considered whether the inclusion of costs from separate orders complied with statutory requirements and whether it amounted to an abuse of process. The creditor, on the other hand, argued that the notice was correctly issued and that the applicant had not been confused or misled by the details provided.

The court found that the bankruptcy notice did not contain any critical defects and that the details were accurately reflected in the schedule. The court dismissed the applicant's argument that the notice was misleading, noting that the applicant, being an experienced accountant, should have understood the orders and costs involved. The court also rejected the argument that the creditor abused the legal process, finding no evidence of improper motives or actions on the part of the creditor.

Accordingly, the court dismissed the application to set aside the bankruptcy notice and ordered that the applicant pay the creditor's costs. The court found that the creditor was entitled to pursue the applicant for the costs awarded in the separate proceedings, and that issuing the bankruptcy notice did not constitute an abuse of process. The applicant's appeal was rejected, and the creditor's costs were upheld.

Orders