Winn v Brian Ward & Partners Pty Ltd

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)

Guss v Veenhuizen (1976) 136 CLR 47
Jones v Porsche Centre Melbourne Pty Ltd, in the matter of Jones [2000] FCA 1423
McAuliffe Williams & Partners v Pecoult [2003] FMCA 278
Croft v Erom Pty Ltd [2005] FMCA 114

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

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.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG351 of 2007

JULENE WINN

Applicant

And

BRIAN WARD & PARTNERS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. 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.

2. 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.”

3. 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. 

4. When the Applicant appeared on her own behalf before this Court it became…