Case: Re a Debtor (No 5982 of 1979) (1981) 78 Law Society Gazette Reports 631
Outcome: cited
helpful comparison may be drawn between the facts of the case before me, and those in an English case Re a Debtor (No 5982 of 1979) (1981) 78 Law Society Gazette Reports 631 (Brightman and O'Connor LJJ and Fox J, 30 January 1981). In Re a Debtor bankruptcy notices issued by petitioning creditors were based, inter alia , on orders for costs granted to them following successful summonses to strike out an application brought against them by the debtor. Certificates had been issued by the taxing officer in respect of the costs awarded. Brightman LJ, with whom O'Connor LJ and Fox J agreed, said that: the principal issue was whether the orders for costs read with the taxing officer's certificates were final orders at the date of issue of the bankruptcy notices. The debtor started with the proposition that the order striking out his cause of action was interlocutory for the purposes of s.31 of the Supreme Court of Judicature (Consolidation) Act 1925 . But it did not follow, as the debtor contended, that the orders for costs contained in the master's order and the judge's order must also be interlocutory. In his Lordship's view, in each case the order for taxation and payment of costs read with the taxing officer's certificate was a final order. (at 631) In this case the costs order made by Searles DCJ was clearly a final order for the purposes of s 40(1)(g). It follows that there was no error in the decision of the Federal Magistrate in respect of this finding, and accordingly there is no merit in Mr Conde's grounds of appeal in respect of this issue. Ground 2: The Federal Magistrate failed to identify the relevant legislation on which he relied to dismiss Mr Conde's application In my view this ground of appeal has no merit. In his judgment the Federal Magistrate specifically referred to the Bankruptcy Act and s 40(1)(g) upon which his Honour relied. His Honour's reasons for dismissing Mr Conde's application were clear, and identified relevant principles. Grounds 3, 4: The Federal Magistrate took into account only Mr Hunter's submissions, and failed to take into consideration Mr Conde's application and affidavit or the relevant legislation Second, as was observed in Re a Debtor (No 5982 of 1979) at 631 the mere fact that an order is subject to a pending appeal is not a reason for treating it as other than a final order and did not prevent the issue of a bankruptcy notice. Third, the Bankruptcy Act allows a petitioning creditor to apply for the issue of a bankruptcy notice based on a final judgment or final order. As I have already observed, it is clear on the material before the Court that the bankruptcy notice served on Mr Conde was founded on a final order of the District Court of Queensland, and properly issued. The fact that there may be related proceedings in other Courts does not prevent the proper issue of a bankruptcy notice and steps taken in pursuance of that notice. Ground 13: Whether there were clear errors of law in the proceedings that could have materially affected his Honour's decision I agree with Mr Hunter that ground 13 is vague and non-specific. In my view it has no merit. Ground 14: The Federal Magistrate was biased against Mr Conde Mr Conde submitted that the Federal Magistrate was not open-minded in hearing the application to set aside the bankruptcy notice, and was biased.