FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINN v BRIAN WARD & PARTNERS PTY LTD | [2007] FMCA 1090 |
| BANKRUPTCY – Application to review Registrar’s decision – Costs order where Bankruptcy Notice set aside by consent – whether payable by Creditor or Debtor. |
| Bankruptcy Act 1966, ss.32, 306 Legal Practice Act 1996 (Vic), s.106(1) |
| Applicant: | JULENE WINN |
| Respondent: | BRIAN WARD & PARTNERS PTY LTD |
| File number: | MLG351 of 2007 |
| Judgment of: | McInnis FM |
| Hearing date: | 18 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2007 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr T.J. Scotter |
| Solicitors for the Respondent: | Brian Ward & Partners Pty Ltd |
ORDERS
The order of the Registrar dated 12 April 2007 be varied by inserting “Brian Ward & Partners Pty Ltd” in lieu of “Brian Ward & Partners” as the name of the Respondent
The Application for Review filed 2 May 2007 be otherwise dismissed.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG351 of 2007
| JULENE WINN |
Applicant
And
| BRIAN WARD & PARTNERS PTY LTD |
Respondent
REASONS FOR JUDGMENT
In these proceedings Julene Winn (the Applicant) by an Application for Review filed 2 May 2007 seeks to set aside orders made by a Registrar on 12 April 2007.
The Applicant who is a barrister appears on her own behalf. The Application for Review seeks a number of orders as follows:-
“1. The applicant has leave to adduce further evidence.
2.The orders made by the Registrar on 12 April 2007 are set aside.
3.The application to set aside the Bankruptcy Notice is amended to name Susan Phillips as the respondent.
4.The Bankruptcy Notice is declared invalid and a nullity.
5.The Bankruptcy Notice proceeding is declared a contravention of s.106(3) of the Legal Practice Act 1996 (VIC).
6.If it is necessary to have regard to the Magistrates Court Order made on 2 October 2006 that order is deemed null and void ab initio.
7.Susan Phillips pay on an indemnity basis the Applicant’s costs of and incidental to the application to set aside the Bankruptcy Notice and the Applicant’s costs of and incidental to the application for Review of the Registrar’s decision.”
I have deliberately set out the orders sought to indicate the somewhat curious nature of this Application for Review given that the orders made by the Registrar on 12 April 2007 included an order that Bankruptcy Notice No VN221 of 2007 be set aside. That order is precisely the primary order which had been sought by the Applicant in her Application filed 26 March 2007.
When the Applicant appeared on her own behalf before this Court it became…
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- Case
- [2007] FMCA 1090
- Decision Date
CaseChat Overview and Summary
The central legal issues the court needed to address included the correctness of the Registrar’s earlier order, which had listed the respondent's name as "Brian Ward & Partners" instead of the correct "Brian Ward & Partners Pty Ltd". Additionally, the court needed to assess the merits of Winn’s application for review, specifically whether the application was valid and should be allowed to proceed. The court's reasoning involved a meticulous examination of the formal aspects of the application, including the accuracy of the respondent's name in the initial order, and the procedural correctness of Winn’s application for review. Ultimately, the court found that the application for review was not valid, and thus dismissed it. The court also ruled that the initial order of the Registrar should be amended to reflect the correct name of the respondent.
In light of the findings, the court made specific orders. Firstly, it varied the order of the Registrar dated 12 April 2007 by inserting the correct name of the respondent, "Brian Ward & Partners Pty Ltd", in place of "Brian Ward & Partners". Secondly, the application for review filed by Winn on 2 May 2007 was dismissed. Lastly, the court ordered that Winn would pay the respondent’s costs, to be taxed in default of agreement in accordance with Order 62 of the Federal Court Rules.
Orders
Orders of the court
1.
The order of the Registrar dated 12 April 2007 be varied by inserting “Brian Ward & Partners Pty Ltd” in lieu of “Brian Ward & Partners” as the name of the Respondent
2.
The Application for Review filed 2 May 2007 be otherwise dismissed.
3.
The Applicant shall pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court 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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