Wallin and Anor. v MJB Building Services

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALLIN & ANOR. v MJB BUILDING SERVICES         [2001] FMCA 71

BANKRUPTCY – application to set aside bankruptcy notice and for an extension of time – appeal, collateral proceedings and cross claim relied upon by applicant – application dismissed.

Bankruptcy Act 1966 (Cth), ss. 30, 41(6A) and 41(7)

Applicants:

GRAHAM CRAIG WALLIN

PAULA J WALLIN

Respondent: MJB BUILDING SERVICES PTY LTD

File Nos:

SZ 249 of 2001

SZ 242 of 2001

Delivered on: 28 August 2001

Delivered at: Newcastle

Hearing Date: 28 August 2001

Judgment of: Driver FM

REPRESENTATION

Applicants in Person

Counsel for the Respondent: Mr R Tregenza

Solicitors for the Respondent: McNeil James Solicitors

ORDERS

1. That the applications be dismissed.

2. That the applicants are to pay the respondent’s costs pursuant to Rule 21.10 of the Federal Magistrates Court Rules

3. That an advocacy certificate be granted pursuant to Rule 21.15 of the Federal Magistrates Court Rules.

Note:Settlement and entry of these orders may be effected pursuant to Order 36 of the Federal Court Rules.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE

SZ249 of 2001

SZ242 of 2001

GRAHAM CRAIG WALLIN
PAULA J WALLIN

Applicants

And

MJB BUILDING SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. I have before me applications by PAULA J WALLIN and GRAHAM CRAIG WALLIN, seeking relief pursuant to ss. 30, 41(6A) and 41(7) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”). The applications were heard together. Pursuant to leave granted by me previously, the applications have been amended and, as further elaborated today, they comprise two parts.

2. The first part is based on the proposition that this Court should go behind a judgment of the NSW Land and Environment Court.  That is the judgment on which the bankruptcy notices are based, and which has been put in evidence in these proceedings as exhibit R5.  That is the decision made by his Honour Lloyd J on 6 November 1997.

3. The second part is that the applicants claim to have a cross-claim or counterclaim of equal or greater value than the amount due under the bankruptcy notice served upon them which should cause the Court to set aside the bankruptcy notice.

4. In addition, the applicants seek further time to comply with the bankruptcy notice, both in the exercise of the Court's discretion under s.41(6A) and as a matter of course pursuant to s.41(7).

5. The Court can set aside invalid or substantially defective bankruptcy notices on proper grounds under s.30 and pursuant to a power implied from other sections of the Bankruptcy Act including, in particular, s. 41. The power of the Court to extend time for the compliance with the bankruptcy notices derived from 41(6A) and 7 carries with it the power to set aside the notices themselves. To set a notice aside, the party must be the person to whom the notice is directed and there is no doubt that in this case that is Mr and Mrs Wallin.

6. This Court has no general discretion under section 30 to otherwise set…