Winn v Boss Lawyers Pty Ltd
[2021] FCCA 1067
•18 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Winn v Boss Lawyers Pty Ltd [2021] FCCA 1067
File number(s): SYG 420 of 2021 Judgment of: JUDGE STREET Date of judgment: 18 May 2021 Catchwords: BANKRUPTCY – application to set aside bankruptcy notice – application to transfer proceedings to Brisbane Registry – application to transfer dismissed – application in a case dismissed. Legislation: Bankruptcy Act 1966 (Cth) ss 27, 41.
Federal Circuit Court Rules 2001 (Cth) rr 8.01, 8.01(2), 13.03C(1)(e).
Bankruptcy Regulations 1996 (Cth) r 16.01.
Number of paragraphs: 17 Date of hearing: 18 May 2021 Place: Sydney Counsel for the Applicant: In person Counsel for the Respondent: Mr S Colditz Solicitors for the Respondent: Mark Harley, Boss Lawyers Pty Ltd ORDERS
SYG 420 of 2021 BETWEEN: JULENE WINN
Applicant
AND: BOSS LAWYERS PTY LTD
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
18 MAY 2021
THE COURT ORDERS THAT:
1.The application for transfer to the Brisbane registry under r 8.01 of the Federal Circuit Court Rules 2001 (Cth) is dismissed.
2.The application filed on 16 March 2021 to set aside the bankruptcy notice is dismissed.
3.Under r 13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth), the proceedings, insofar as the costs application, are to continue in the absence of the applicant.
4.The applicant pay the respondent’s costs fixed in the amount of $9,000.00.
REASONS FOR JUDGMENT
JUDGE STREET:
This is an application within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”), in which the applicant seeks to have set aside a Bankruptcy Notice.
The provisions of s 41 of the Act make crystal clear that the application to set aside the Bankruptcy Notice must be made before the act of bankruptcy. In this case, the evidence of the applicant demonstrates that the Bankruptcy Notice was served on an email address that she continues to use, and, in fact, which is included in her originating process. On the applicant’s own evidence, inconsistent with the assertions in her first affidavit, the annexure JW6 to the second affidavit is consistent with the email address to which the bankruptcy notice was sent, being the last known email address for service, affected in accordance with r 16.01 of the Bankruptcy Regulations 1996 (Cth) (“the Regulations”).
The act of bankruptcy occurred, accordingly, on 29 December 2020. The application in these proceedings was not commenced until 16 March 2021 which is out of time and means there is no jurisdiction to set aside the bankruptcy notice.
The applicant has put forward a number of spurious contentions, as to why the proceedings are ones that should give rise to the Bankruptcy Notice being set aside. The assertion the bankruptcy notice was not valid is without substance. The dispute as to service of the bankruptcy notice is without substance. This included a dispute as to amount and a contention of going behind the judgment debt, none of which had merit and none of which mean this court has jurisdiction.
The applicant is a lawyer, and it a well-known source of general practice that lawyers should rarely act for themselves, and it is rarely prudent to do so. The applicant’s affidavits reflect a subjectivity not consistent with the objective standards of a competent lawyer. The putting on of the applicant’s affidavits in the present case disputing service on the contentions as to the last known address for service, inability to access emails and blocking of the same is at best dissembling. The affidavits of the applicant do not meet the standard expected of a legal practitioner.
It is apparent, on the applicant’s own affidavit evidence that she has been served with the Bankruptcy Notice by email. The steps taken by the applicant to try and prevent receipt of the service of the Bankruptcy Notice and to try and explain non-receipt of the same are extremely unimpressive. The contention that she could not access, through her own computer, emails, when emails can be accessed through other sources is one reason why this conduct falls below the standard expected.
Lawyers being servants of the rule of law and officers of the Court, when they put on affidavit evidence, need to be very diligent, candid, careful, accurate and frank to ensure compliance with their duty as a practitioner to the Court. Their future career as a legal practitioner depends upon it.
The applicant’s affidavits, in the present case, do not reflect that care and attention that one would ordinarily expect. The contention that the Bankruptcy Notice was not served, in accordance with the Regulations, is without substance. The contention that the email address was not the last known email address is contradicted by the applicant’s own affidavit, and without substance. The Court does not accept the contentions sought to be advanced, in relation to the substantive issue of setting aside the Bankruptcy Notice, as the Court has no jurisdiction as the act of bankruptcy occurred before the commencement of these proceedings. The application has been filed out of time.
Accordingly, the Court makes the following order: The application filed on 16 March 2021 to set aside the bankruptcy notice is dismissed.
The Court also notes these are proceedings, in respect of which, the applicant attended by telephone, and during the course of the Court’s delivery of reasons, where the Court ruled against the applicant, the applicant left the hearing. This also does not reflect the standards expected of a legal practitioner. The Court is satisfied, in those circumstances, it is appropriate to make an order for the proceedings to continue on the issue of costs, given the applicant’s attendance, and what appears on its face to be a deliberate leaving from the Court room. The applicant has both an email, that she is capable of accepting, to re-join the hearing, as well as being able to dial in by mobile. Neither step has been taken by the applicant.
It is for these reasons the Court has made an order for the proceedings, so far as the costs application, to continue in the absence of the applicant. The respondent has asked for costs in the sum of $9000.
The Court regularly hears applications in relation to bankruptcy matters, and it is apparent that these proceedings have been before a registrar, on an earlier occasion, and that several affidavits have been filed. There was also a request to transfer the proceedings. In relation to the application for transfer of the proceedings, the Court notes that the matter was fixed to a hearing before this Court.
Taking into account the considerations under r 8.01(2) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), the Court was not satisfied it was appropriate to transfer the proceedings. Nothing said by the parties identified why the matter could not be efficiently and conveniently heard by video and audio-link from Sydney. The hearing today also limits the expenses, and it is an appropriate matter, where there is on the face of the proceedings, no jurisdiction for it to be dealt with without transfer to another location. It is for these reasons the transfer request was refused.
In relation to the costs application, the volume of the affidavit evidence has been served, including, more recently, the parties written submissions, are consistent with party-party costs being incurred by the respondent, in excess of the amount of $9000.
The Court is satisfied this is an appropriate matter in which to fix the respondent’s costs.
The past disputation between the parties is a further reason for the Court to do so. The applicant has deprived herself of the opportunity of inputting as upon costs or as to the rate applied, in respect of the costs or the disbursements. This was clearly an appropriate matter in which to retain counsel. There is nothing in the amount proposed that suggests it is beyond the ordinary amount, on a party-party basis, that the Court would expect to be incurred in respect of this type of application.
Further steps of requiring additional evidence, in respect of the costs, will only add to the costs of the parties that may well be unrecoverable. Accordingly, the application filed on 16 March 2021 to set aside the bankruptcy notice is dismissed and in all the circumstances the Court orders the applicant to pay the respondent’s costs fixed in the amount of $9,000.00.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 21 May 2021
3
0
0