Williams v The People's Solicitors Pty Ltd - [2011] FMCA 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILLIAMS v THE PEOPLE'S SOLICITORS PTY LTD

[2011] FMCA 482

BANKRUPTCY – Application to set aside or extend time of a bankruptcy notice – debt based upon costs assessment in the Local Court – effect of application to pay by instalments – whether cross-claim exceeding judgment debt – application for review of the costs assessment – stay on execution under s.377 of the Legal Profession Act 2004 (NSW) – bankruptcy notice valid – no grounds for setting aside – time for compliance extended until completion of costs review.

Bankruptcy Act 1966, ss.40(1)(g), 41(3), 41(6A), 41(7)
Legal Profession Act 2004 (NSW), s.377
Uniform Civil Procedure Rules 2005 (NSW), rr.37.2, 37.3, 37.5

Burns v AMP FinanceLtd [2004] FCA 1094
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Coshott v Barry [2009] FCA 1521
Davidova v Murphy [2009] FCA 601
Glew v Harrowell [2003] FCA 373; (2003) 198 ALR 331
Maher v Honeysett [2009] FMCA 4; (2009) 222 FLR 407
Massih v Esber [2008] FCA 1452; (2008) 250 ALR 648
Owners of Strata Plan Number 14368 v Dickson (2008) 221 FLR 299
Re Johnson; ex parte Johnson v Tonkin (1994) 53 FCR 70
Re Schekeloff; Ex Parte Schekeloff v The Hopkins Group Pty Ltd (1989) 22 FCR 407
Williams v Spautz (1992) 174 CLR 509

Applicant:

BARRY THOMAS WILLIAMS

Respondent:

THE PEOPLE'S SOLICITORS PTY LTD

File Number:

SYG 650 of 2011

Judgment of:

Smith FM

Hearing date:

15 June 2011

Delivered at:

Sydney

Delivered on:

15 June 2011

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Mr K Liu & Mr B Ramsey

Solicitors for the Respondent:

The People's Solicitors

ORDERS

Pursuant to s.41(6A)(a) of the Bankruptcy Act 1966 (Cth) the time for compliance with Bankruptcy Notice BN1608 issued 9 March 2011 is extended until the date on which a certificate is issued under s.378(1) of the Legal Profession Act 2004 (NSW) in relation to the costs assessment review in case number 2010/000143080.
The application is otherwise dismissed.
The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
The applicant must provide a copy of this order to the Official Receiver within 2 working days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 650 of 2011

BARRY THOMAS WILLIAMS

Applicant

And

THE PEOPLE'S SOLICITORS PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This judgment explains why I am persuaded to extend time for Mr Williams to comply with a bankruptcy notice, but am not satisfied that I should set aside the notice.
Mr Williams employed solicitors practicing as “The People’s Solicitors” to defend proceedings in the Supreme Court, the nature of which is obscure. The proceedings ended with Mr Williams’ withdrawing his defence. He was served by The People’s Solicitors with further invoices for their legal services, which he refused to pay. The People’s Solicitors commenced proceedings to recover their outstanding fees in…

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: [2011] FMCA 482
Decision Date: 15 June 2011

CaseChat Overview and Summary

Williams v The People's Solicitors Pty Ltd involves a dispute between the applicant, Williams, and the respondent, The People's Solicitors Pty Ltd. The central issue is the extension of time for compliance with a Bankruptcy Notice issued by the respondent. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue the court was required to decide was whether the time for compliance with the Bankruptcy Notice could be extended until the conclusion of a costs assessment review. This question required the court to consider the interplay between the Bankruptcy Act 1966 (Cth) and the Legal Profession Act 2004 (NSW), as well as the specific provisions of each Act relevant to the respective proceedings.

The court found that the Bankruptcy Notice was issued on 9 March 2011, and the applicant sought an extension of time for compliance with this notice until the costs assessment review was concluded. The court considered that the extension was permissible under section 41(6A)(a) of the Bankruptcy Act, as it would not unduly prejudice the respondent. The court also took into account the necessity of resolving the costs assessment review before proceeding with the bankruptcy compliance. Consequently, the court granted the extension of time for compliance until the issuance of the certificate under section 378(1) of the Legal Profession Act.

The court further ordered that the application was dismissed in all other respects and that the applicant must pay the respondent's costs, including reserved costs, as agreed or taxed under the relevant legislation. This decision underscores the importance of coordinating proceedings across different legislative frameworks to ensure fair and just outcomes.

Orders

Orders of the court

Pursuant to s.41(6A)(a) of the Bankruptcy Act 1966 (Cth) the time for compliance with Bankruptcy Notice BN1608 issued 9 March 2011 is extended until the date on which a certificate is issued under s.378(1) of the Legal Profession Act 2004 (NSW) in relation to the costs assessment review in case number 2010/000143080.

The application is otherwise dismissed.

The applicant must pay the respondent’s costs, including reserved costs, as agreed or taxed under the

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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