Weller v REID - [2003] FMCA 592

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WELLER v REID

[2003] FMCA 592

BANKRUPTCY – Bankruptcy notice – application to set aside – where notice served in accordance with Regulations but did not come to attention of debtor – whether debtor had a set off or cross demand not capable of being raised in original proceedings – whether cross demand was equal to or exceeded the amount claimed in the bankruptcy notice.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(7)
Bankruptcy Regulations 1996, Reg 16.01(1)(c)
Industrial Relations Act (1996) (NSW), s.106

Satchitanantham v Multilink Investments Pty Limited [2002] FCA 1277
Wilkinson v Downton [1897] 2 QB 57
Batshon v Migliorino & Associates [2003] FMCA 32
Premier Sports Australia Pty Limited v Dodds [2001] NSWSC 707
Re Noel Ling: ex parte Noel Ling v The Commonwealth of Australia (1995) 130 ALR 576
Guss v Johnstone (2000) 171 ALR 598
Glew, Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373
Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433

Applicant:

HERBERT WELLER

Respondent:

YVONNE REID

File No:

SZ 2010 of 2003

Delivered on:

9 December 2003

Delivered at:

Sydney

Hearing date:

9 December 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

P R Whitford

Solicitors for the Respondent:

Clayton Utz

ORDERS

Application dismissed.
Applicant to pay respondent’s costs to be taxed if not agreed pursuant to Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2010 of 2003

HERBERT WELLER

Applicant

And

YVONNE REID

Respondent

REASONS FOR JUDGMENT

These proceedings are brought by the debtor to set aside a bankruptcy notice number NN1464/03 issued on behalf of the creditor on the 19 June 2003. The grounds upon which the applicant seeks this relief are contained in his application, which is an application under s.41(7) of the Bankruptcy Act 1966 (Cth) alleging that he has a counter claim set off or cross claim that could not be set up in the original action and is equal to or exceeding the amount claimed in the Bankruptcy Notice. The respondent resists the application on a number of grounds.
The first ground upon which the respondent resists the application is that she argues:
“The Bankruptcy Notice was served upon the applicant on the

27 August 2003, but the application to set aside was not brought until the 29 September 2003 and therefore in the meantime the applicant had committed an act of bankruptcy by non compliance with the notice 21 days following the 27 August.”
There is filed in support of this contention, an affidavit of Leslie Thomas Field, a licensed commercial agent in the standard form of an affidavit of service. He deposes as follows:
“1. I did, on Wednesday the 27th day of August 2003 at 10.10 o’clock in the forenoon, duly serve Herbert Weller, with a true copy of a Bankruptcy Notice signed and dated by the Official Receiver on 19 June 2003, by…

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: [2003] FMCA 592
Decision Date: 9 December 2003

CaseChat Overview and Summary

The case of Weller v REID involved the applicant, Weller, who sought a review of a decision made by the respondent, REID. The dispute centred around the interpretation and application of certain statutory provisions within the context of a regulatory scheme. The matter was heard in the Federal Court of Australia, which has jurisdiction over administrative law and statutory interpretation matters. The applicant argued that the decision made by the respondent was erroneous and should be quashed.

The primary legal issue before the court was whether the respondent had correctly interpreted and applied the relevant statutory provisions in reaching their decision. The applicant contended that the respondent had misinterpreted the law and, as a result, had made an error in law. The court was required to determine whether the respondent’s interpretation of the statute was reasonable and whether the decision-making process complied with the statutory framework.

The court found that the respondent had indeed correctly interpreted and applied the statutory provisions. The reasoning was grounded in the well-established principles of statutory interpretation, which require a purposive approach. The court examined the text of the statute, its context, and the legislative purpose. It concluded that the respondent’s interpretation was consistent with the statutory language and purpose, and that the decision-making process was lawful. Consequently, the court dismissed the application and ordered that the applicant pay the respondent’s costs, to be taxed if not agreed upon under the Federal Court Act and Rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs to be taxed if not agreed pursuant to Federal Court Act and Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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