Ynot Australia Pty Ltd v RAEBURN

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YNOT AUSTRALIA PTY LTD v RAEBURN [2012] FMCA 834

BANKRUPTCY – Bankruptcy notice – validity – sequestration order – whether the bankruptcy notice was defective – rate of interest – amount of interest – notice defective – application dismissed.

Bankruptcy Act 1966 (Cth), ss.41, 52, 306
Uniform Civil Procedure Rules 1999 (Qld)
District Court of Queensland Act 1967 (Qld)
Supreme Court Act 1995 (Qld)
Supreme Court Regulation 2008 (Qld)

Adams v Lambert (2006) 228 CLR 409
Bendigo Bank Ltd v Williams (2000) 173 ALR 175
Re Godfrey Charles De Marco; Godfrey Charles De Marco v Australian & New Zealand Banking Group Limited [1997] FCA 759
GR Finance Limited v Francis Waldron [2009] FMCA 418
James v FCT (1955) 93 CLR 631
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
National Australia Bank v Westbrook [2000] FCA 246
Pillai v Comptroller of Income Tax [1970] AC 1124
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Applicant: YNOT AUSTRALIA PTY LTD

Respondent: RICHARD RAEBURN

File Number: BRG 452 of 2012

Judgment of: Burnett FM

Hearing date: 6 August 2012

Date of Last Submission: 6 August 2012

Delivered at: Brisbane

Delivered on: 6 August 2012

REPRESENTATION

Counsel for the Applicant: Mr D. Clarry

Solicitors for the Applicant: Butler McDermott Lawyers

The respondent appeared on his own behalf

Solicitors for the Supporting Creditor: Jones King Lawyers

ORDERS

1. That the Creditor’s Petition filed 24 May 2012 be dismissed.

2. That there be no order as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 452 of 2012

YNOT AUSTRALIA PTY LTD

Applicant

And

RICHARD RAEBURN

Respondent

REASONS FOR JUDGMENT

1. The applicant seeks a sequestration order against the respondent. The following facts are not in contest. On 15 November 2011 the applicant obtained judgment in the Maroochydore Magistrates Court against the respondent in a sum of $159,215.11. That sum was made up of the principal claim of $141,557.59, interest of $13,542.99 and costs of $414.53. On 12 January 2012, the applicant caused a bankruptcy notice to issue.  In the notice it claimed a debt of $159,215.11, that being the sum entered in the judgment, and it also claimed for a sum of $4,048.83 by way of interest, a matter that I will come back to in due course. 

2. On 5 February 2012, the bankruptcy notice was served, however, the respondents did not answer or comply with the direction in the notice and, accordingly, on 27 February 2012 they arguably committed an act of bankruptcy. On 24 May, the applicants caused their creditor’s petition to issue and that petition was served on 5 June 2012. Subject to the debate which is the object of this judgment, the applicant has otherwise made out a prima facie entitlement to a sequestration order. 

3. The respondent opposes the applicant’s application for sequestration.  He claims that the judgment entered was for an excessive sum.  He contends that it overvalues the capital due because the respondent was entitled to claim a setoff…