Zegarac v Dellios

[2007] HCATrans 526

[2007] HCATrans 526

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M5 of 2007

B e t w e e n -

SLAVICA ZEGARAC

Applicant

and

PAUL DELLIOS T/AS DELLIOS WEST & CO

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 SEPTEMBER 2007, AT 9.14 AM  

Copyright in the High Court of Australia

GUMMOW J: The applicant was served with a bankruptcy notice by the respondent. The relevant debt arose from a judgment of the Magistrates Court of Victoria regarding unpaid legal fees. The applicant applied to the Federal Magistrates Court to have the bankruptcy notice set aside, or to have the time for compliance extended. The applicant claimed to have two counterclaims against the respondent within the meaning of s 40(1)(g) of the Bankruptcy Act 1966 (Cth). The first was a claim regarding professional negligence; the second concerned an alleged defamation.

On 16 December 2005, Phipps FM refused the application. The applicants' counterclaims were neither sufficient grounds to set aside the bankruptcy notice, nor to extend the time for compliance: the first counterclaim could have been set up in the action in which the judgment was obtained against her; the second was at best an inchoate claim that was not complete at the time of the application.

The applicant then sought leave to appeal to the Federal Court from the decision of Phipps FM. That application was made well out of time, and on 13 December 2006 Marshall J dismissed the application as no reasonable explanation was given for the delay, and the application was in any event bound to fail.

The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court. There are no prospects of success on any appeal to this Court.  Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.  I publish the disposition signed by Justice Heydon and myself.

AT 9.16 AM THE MATTER WAS CONCLUDED