Zurcas v Bryantcraft Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ZURCAS v BRYANTCRAFT PTY LTD [2010] FMCA 161

BANKRUPTCY – Application to set aside Bankruptcy Notice – consideration of validity of Notice – Costs Certificate attached to notice – consideration whether Costs Certificate an order of the Court.

Bankruptcy Act 1966, ss.33(1)(b), 40(1)(g), 41(5)
Trade Practices Act 1974

ANZ Banking Group Ltd v Menso [2006] FMCA 1522
Worchild v The Drink Club [2005] FCAFC 240
Commonwealth Bank of Australia v Horvath (Junior) [1999] FCA 143
Skouloudis v St George Bank [2008] FCA 1765

Applicant: ARTHUR ZURCAS

Respondent: BRYANTCRAFT PTY LTD

File Number: MLG 1552 of 2009

Judgment of: Burchardt FM

Hearing date: 3 February 2010

Date of Last Submission: 3 February 2010

Delivered at: Melbourne

Delivered on: 3 February 2010

REPRESENTATION

Counsel for the Applicant: Mr F. Sanna

Solicitors for the Applicant: Frank Anthony Sanna

Counsel for the Respondent: Mr J. Kohn

Solicitors for the Respondent: Indovino Lawyers

ORDERS

1. That Bankruptcy Notice No VN 2237 of 2009 be set aside. 

The costs of this proceeding are to abide and reflect the result of the County Court proceeding referred to in these Reasons for Judgment (namely matter number C1-09-01721), and in default of judicial determination in that proceeding, each party bear their own costs.

(Amended pursuant to Rule 16.05(2)(e) of the Federal Magistrates Court Rules (2001))

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1552 of 2009

ARTHUR ZURCAS

Applicant

And

BRYANTCRAFT PTY LTD

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. In this matter, as I perceive it, there are two issues presently the subject of controversy. First, was the Bankruptcy Notice in this case invalid, and if so – or if it is the subject of criticism, can it be amended? Secondly, does Mr Zurcas have a counter-claim that falls within the operation of s.40(1)(g) of the Bankruptcy Act 1966 (“the Act”). I note at the outset that no notice under s.41(5) has been given by Mr Zurcas.

2. Relevant background facts include the following.  On 12 November 2009 service of the Bankruptcy Notice was effected personally on

   
   

   Mr Zurcas.  On 2 December 2009 Mr Zurcas filed an application to set the Bankruptcy Notice aside, supported by an affidavit filed on the same date.  That affidavit put into evidence by way of exhibit a writ with statement of claim, and defence and counterclaim in a County Court proceeding.  It may be noted that Bryantcraft Pty Ltd was not a party to the statement of claim, it was merely joined to the proceedings by the counterclaim.  It should also be noted that there was no suggestion made in Mr Zurcas’ affidavit of any defect in the Bankruptcy Notice or that he had been misled in any way by it. 

3. The counterclaim against Bryantcraft Pty Ltd in that proceeding was on one view very limited.  The statement of claim relevantly pleaded loans to Mr Zurcas.  In paragraph 3, it was put that Mr Zurcas was a borrower jointly and severally with a company and…