Wild v Summit Acceptance Pty Ltd (No.2)
[2011] FMCA 438
•25 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILD v SUMMIT ACCEPTANCE PTY LTD (No.2) | [2011] FMCA 438 |
| PRACTICE & PROCEDURE – Whether court should hear an application to set aside bankruptcy notice where applicant had not previously appeared and the original application had been dismissed – whether application was filed out of time. |
Federal Magistrates Court Rules 2001
Federal Magistrates Court (Bankruptcy) Rules 2006
| Applicant: | BRETT WILD |
| Respondent: | SUMMIT ACCEPTANCE PTY LTD |
| File Number: | SYG 416 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 25 May 2011 |
| Date of Last Submission: | 25 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2011 |
REPRESENTATION
| For the Applicant: | In person by telephone |
| Solicitors for the Respondent: | David Milne & Associates |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $450.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 416 of 2011
| BRETT WILD |
Applicant
And
| SUMMIT ACCEPTANCE PTY LTD |
Respondent
REASONS FOR JUDGMENT
There comes before me today an application filed with this court but, apparently not served upon the respondent, dated 10 May 2011. The details of the interim orders sought are:
“(1) Pursuant to the Federal Magistrates Court Rules 2001 Rule 13.11, Vexatious Litigants - The respondent in this matter has perused the debt through the Downing Centre court and the Supreme Court of NSW.
(2) Pursuant to Rule 16.053 there is annexed to the application an affidavit from Mr Wild, the applicant. Although the document was not served, Mr Milne, who appears for the respondent, is present in court today.”
The real point of the application is to request the court to set aside an order which it made on 10 May 2011 dismissing an earlier application made by Mr Wild for review of a decision of Registrar Hedge on the grounds of his non appearance. This is not the first time Mr Wild had not appeared before the court. When the matter was originally brought before the court on 12 April 2011 it was brought before Barnes FM. Mr Wild did not appear then. However, in regards to that non appearance there seemed to be some misunderstandings between Mr Wild and the court and it was generally thought appropriate to allow the application for review to be reheard. In respect of the hearing on 10 May Mr Wild tells the court that he thought that the hearing could be conducted with him at the telephone but he made no such application and no indulgence of that type was given either by myself or by the Registry on my behalf. Mr Wild should have attended but he did not.
In giving consideration to whether or not I should set aside my original order and hear Mr Wild’s application for review I have taken into account the previous conduct of Mr Wild and, most importantly, I have taken into account the prospects of success in any such application for review because if there is no utility in setting aside the order then it is not appropriate that the Court should act under Order 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (the “Rules”). I have come to the conclusion that there would be no utility because the application by Mr Wild seeking to set aside the bankruptcy notice was filed, in my view, out of time.
Mr Wild attended the local court in Singleton near to where he lives on 2 March 2011. Utilising the services of that court he faxed to this court an application under Form 2, and an affidavit, together with a credit card authority in the sum of $100.00. The sum of $100.00 represents a reduced fee which is allowed to be paid by certain persons who are considered by the registry to fall within certain criteria. It is not entirely clear to me whether Mr Wild completed the form seeking the reduction in payment of court fees and sent it to this court on 2 March.
There is in the file a fax copy of the application which has on it a fax date of 1 March but also has on it a stamp indicating the date filed as 10 March and that was the date that the Registrar approved the reduction. The form itself was signed by Mr Wild on 1 March. There is no indication on the document that I have that it was sent with the other documents on 2 March. It is very possible that the fax details on the document, which are not in the same print or format as those on the documents from the Singleton Court, are actually fax details of the document being sent to Mr Wild. In any event the second page of the fax that I have been referring to is a copy of Mr Wild’s Repat Health Card which was a piece of evidence which the court would have required in order to approve the application that Mr Wild has made for reduction in the fees. The fax information on that sheet has got 9 March 2011, 21.54 and the name: the Singleton court. This information is identical to information on another affidavit and application sent apparently by Mr Wild from the Singleton court on 9 March 2011 at 21.45 apparently. If the Singleton court was open at that time of night certainly the Federal Court was not and any document received then would not be dealt with until the following day, 10 March. I believe that I am entitled to draw an inference from these documents that the pensioner card that was required before the court could make any assessment as to whether or not Mr Wild was entitled to the reduction in fees, was not sent until 9 March. The application that was sent on 9 March also attached a copy of the bankruptcy notice and it is this application and the affidavit in support which was stamped as filed on 10 March 2011.
The rules relating to an application to set aside a bankruptcy notice are found as Rule 3.02 in Part 3 of the Federal Magistrates Court (Bankruptcy) Rules 2006. That Rule is in the following form:
“Setting aside bankruptcy notice (Bankruptcy Act s 41 (6A), (6C) and (7))
(1) An application to set aside a bankruptcy notice must be accompanied by:
(a) a copy of the bankruptcy notice; and
(b) an affidavit stating:
(i) the grounds in support of the application; and
(ii) the date when the bankruptcy notice was served on the applicant; and
(c) a copy of any application to set aside the judgment or order in relation to which the bankruptcy notice was issued and any material in support of that application.
(2) If the application is based on the ground that the debtor has a counter‑claim, set‑off or cross demand mentioned in paragraph 40 (1) (g) of the Bankruptcy Act, the affidavit must also state:
(a) the full details of the counter‑claim, set‑off or cross demand; and
(b) the amount of the counter‑claim, set‑off or cross demand and the amount by which it exceeds the amount claimed in the bankruptcy notice; and
(c) why the counter‑claim, set‑off or cross demand was not raised in the proceeding that resulted in the judgment or order in relation to which the bankruptcy notice was issued.
(3) The application and supporting documents must be served on the respondent creditor within 3 days after the application is filed.”
The application documents that Mr Wild sent to this court on 2 March did not comply with that Rule. Firstly, because there was no copy of the bankruptcy notice sent therewith, and secondly, because, to my mind, the affidavit that was attached there did not properly state the grounds in support of the application. The affidavit has only two paragraphs:
“(1) That the notice was issued last week, being 16 February 2011.
(2) The action commenced by the respondent is already subject to other court matters.”
I am prepared to accept that paragraph 1 stands as the date upon which the bankruptcy notice was served because Mr Milne, who appears for the respondent advises me that was the date upon which it was served. But the second paragraph does not convince me that it provides the grounds in support of the application. It is no more than an assertion of fact which may or may not be correct and which may or may not have some bearing upon the validity of the bankruptcy notice.
I am of the view that the document sent to the court and not accepted for filing on 2 March 2011 was not competent as an application to the court and, whilst I have my doubts as to the competency of the document that eventually arrived on 10 March, that is irrelevant because by then the application was out of time. The applicant by failing to obtain an extension of time for compliance with the bankruptcy notice prior to its expiration has committed an act of bankruptcy. I do not believe that in all these circumstances it is appropriate that I should set aside my order and further hear Mr Wild upon why the notice should be set aside. The application is dismissed. I order that the applicant pay the respondent’s costs which I assess in the sum of $450.00.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 9 June 2011
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