Wily v Wood

[2008] FCA 208

FEDERAL COURT OF AUSTRALIA

Wily v Wood [2008] FCA 208

ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED v LINDA WOOD

NSD 2340 OF 2007

COWDROY J
3 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2340 OF 2007

BETWEEN:	ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED Applicant
AND:	LINDA WOOD Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	3 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time in which to file and serve the Notice of Appeal be extended to 17 March 2008.

2.The Applicant pay the costs of the Respondent pursuant to O 62 r 23 of the Federal Court Rules.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2340 OF 2007

BETWEEN:	ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED Applicant
AND:	LINDA WOOD Respondent

JUDGE:	COWDROY J
DATE:	3 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Mr Wily (‘the liquidator’), as liquidator of Kitchen Central Pty Limited (‘the company’) applies for an extension of time pursuant to O 52 r 15(2) of the Federal Court Rules (‘the Rules’) to file and serve a notice of appeal from the decision of Federal Magistrate Housego delivered on 31 October 2007. By such decision her Honour set aside Bankruptcy Notice No. NN 2151 of 2007 (‘the bankruptcy notice’) which was served on the respondent, Ms Wood, on 6 June 2007. The liquidator has applied for his application to be considered without an oral hearing pursuant to O 52 r 4 of the Rules and Ms Wood has not objected to such a course.

   FACTS

2. The bankruptcy notice was served upon Ms Wood alleging that she is indebted to the company. Ms Wood applied to the Federal Magistrates Court of Australia to have the bankruptcy notice set aside on the ground that she had a set-off against the company as provided in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). The only issue for determination before Housego FM was whether there was sufficient mutuality of the two respective debts for the purposes of establishing set-off as a basis to set aside the bankruptcy notice.

3. Housego FM was required to determine whether the intervening liquidation of the company which occurred on 21 March 2007 prohibited a finding of mutuality. Housego FM rejected the submission of the liquidator that since the debt owed by the company to Ms Wood was a company debt and the debt owed by Ms Wood was owed to him as the liquidator of the company, the claims were not in the same right. Housego FM instead found that the debt was owed to the liquidator by Ms Wood in his capacity as liquidator. Relying on Stec v Orfanos [1999] FCA 457 at [24] her Honour found that on the basis of set-off there was sufficient mutuality…