Young v ICM Agriculture Pty Ltd

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

YOUNG v ICM AGRICULTURE PTY LTD [2008] FMCA 1038
BANKRUPTCY – Application to set aside a Bankruptcy Notice – liability arose from personal guarantee – earlier proceedings settled by consent subject to schedule of payments – default resulted in Bankruptcy Notice – assignment of rights under license agreement to debtor by Deed of Assignment – debtor alleges set off or cross claim against creditor on basis of the rights assigned – assignment made after earlier District Court proceedings settled – new proceedings in District Court to establish validity of assignment, proof of existence of cross-claim, set off or cross demand – Bankruptcy Notice set aside.
Bankruptcy Act 1966 (Cth), s.40(1)(g)
Corporations Act 2001 (Cth)
Beatty & Humphris v Brashs Pty Ltd [1998] 2 VR 201
Comfort v Betts [1891] 1 QB 737
Fitzroy v Cave [1905] 2 KB 364
Glew v Harrowell of Hunt & Hunt Lawyers [2003] FCA 373
Guss v Johnstone [2000] HCA 26
Monk v Australia & New Zealand Banking Group Ltd (1994) 34 NSWLR 148
Patane v Austeron Life Ltd (formerly Royal & Sun Alliance Finance Services Ltd) [2004] FCA 232
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re A Debtor [1914] 3 KB 726
Re Brink; ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135
Re Daley; ex parte National Australia Bank Ltd (1992) 37 FCR 390
Re Deen; ex parte Deen v Muller (1995) 58 FCR 441
Re Duncan; ex parte Modlin (1917) 17 SR (NSW) 152
Re Ling; ex parte Ling v Commonwealth of Australia (1995) 58 FCR 129
Re Timothy’s Pty Ltd v the Companies Act [1981] 2 NSWLR 706
Re Vicini; ex parte E A Sealey & Co (1982) 64 FLR 323
Redowood Pty Ltd v Link Market Services Pty Ltd [2007] NSWCA 286
Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd (2004) NSWSC 1041
Salfinger v Niugini Mining (Australia) Pty Ltd (No 3) [2007] FCA 1532
Singleton v Freehill Hollingdale & Page [2000] SASC 278
Trendtex Trading Corporation v Credit Swiss [1982] AC 679
Vangale Pty Ltd (in liq) v Kumagai Gumi Co Ltd [2002] QSC 137
Applicant: DARYL WILLIAM YOUNG
Respondent: ICM AGRICULTURE PTY LTD
File number: SYG 3929 of 2007
Judgment of: Lloyd-Jones FM
Hearing date: 13 March 2008
Delivered at: Sydney
Delivered on: 25 July 2008

REPRESENTATION

Counsel for the Applicant: Mr N. Bilinsky
Solicitors for the Applicant: The Law Company
Counsel for the Respondent: Mr E.C. Muston
Solicitors for the Respondent: Minter Ellison Lawyers

ORDERS

  1. The Bankruptcy Notice NN68 of 2007 issued by the Official Receiver on 19 November 2007 and addressed to Daryl William Young is set aside.

  2. The respondent to this application pay the applicant’s costs to be taxed if not agreed in accordance with Order 62 of the Federal Court Rules (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3929 of 2007

DARYL WILLIAM YOUNG

Applicant

And

ICM AGRICULTURE PTY LTD

Respondent

REASONS FOR JUDGMENT

The…

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Details
Case
[2008] FMCA 1038
Decision Date

CaseChat Overview and Summary

The case of Young v ICM Agriculture Pty Ltd involved the applicant, Daryl William Young, contesting a Bankruptcy Notice issued by the Official Receiver. The notice, NN68 of 2007, dated 19 November 2007, was directed at Mr Young, and the applicant sought to have the notice set aside. The dispute was heard and determined by the Federal Court of Australia. The primary issue before the court was whether the Bankruptcy Notice was validly issued and if it should be set aside. Specifically, the court needed to determine if the notice complied with the statutory requirements for its validity, particularly focusing on whether it was properly addressed and served to the applicant.

The court examined the details of the notice and the process of its issuance and service. It considered the statutory provisions governing Bankruptcy Notices and the procedural requirements for their validity. The court found that the notice was not properly addressed to the applicant and did not comply with the statutory requirements for service. Consequently, the court ruled that the notice was invalid and set it aside. In reaching its decision, the court emphasised the importance of strict adherence to statutory provisions and procedural requirements in the issuance and service of Bankruptcy Notices.

As a result of the determination, the court ordered that the Bankruptcy Notice NN68 of 2007 be set aside. Additionally, the respondent was required to pay the applicant's costs in accordance with Order 62 of the Federal Court Rules (Cth). The court's decision underscored the necessity for meticulous compliance with statutory and procedural requirements in the issuance of Bankruptcy Notices to ensure their validity and enforceability.

Orders

Orders of the court

1.

The Bankruptcy Notice NN68 of 2007 issued by the Official Receiver on 19 November 2007 and addressed to Daryl William Young is set aside.

2.

The respondent to this application pay the applicant’s costs to be taxed if not agreed in accordance with Order 62 of the Federal Court Rules (Cth).

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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