mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 , 224 FLR 319
Outcome: cited
the outset of the hearing of the appeals on 12 October 2009, Ms Mead sought to file in her appeal a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth). Notwithstanding the terms in which that Notice was expressed, Ms Mead explained that it was not intended to raise any matter arising under the Constitution in this Court. Rather than this Court being under a possible " duty ... not to proceed ", Ms Mead was anxious for this Court to hear and resolve her claims immediately. Such a position, it may be noted, was inconsistent with the application to have the appeals in effect adjourned. The Notice was, in any event, understood as being more directed to the alleged failure on the part of the Federal Magistrate to give proper weight to Ms Mead's inability to comply with the 21 day period prescribed in the bankruptcy notice due to her being in custody. In the absence of any matter arising under the Constitution being raised in this Court, the appeal proceeded to be heard on 12 October 2009. Had it been necessary to resolve an alternative contention, namely that the Notice imposed upon this Court a " duty ... not to proceed ", that contention would have been rejected: cf Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396 per French J; Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 at [30] , [2009] SASC 56 ; 224 FLR 319 at 327 to 328 per Gray J; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179.
Case: Davidova v Murphy [2009] FCA 60
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 , 56 ATR 371
Outcome: cited
the outset of the hearing of the appeals on 12 October 2009, Ms Mead sought to file in her appeal a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth). Notwithstanding the terms in which that Notice was expressed, Ms Mead explained that it was not intended to raise any matter arising under the Constitution in this Court. Rather than this Court being under a possible " duty ... not to proceed ", Ms Mead was anxious for this Court to hear and resolve her claims immediately. Such a position, it may be noted, was inconsistent with the application to have the appeals in effect adjourned. The Notice was, in any event, understood as being more directed to the alleged failure on the part of the Federal Magistrate to give proper weight to Ms Mead's inability to comply with the 21 day period prescribed in the bankruptcy notice due to her being in custody. In the absence of any matter arising under the Constitution being raised in this Court, the appeal proceeded to be heard on 12 October 2009. Had it been necessary to resolve an alternative contention, namely that the Notice imposed upon this Court a " duty ... not to proceed ", that contention would have been rejected: cf Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396 per French J; Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 at [30] , [2009] SASC 56 ; 224 FLR 319 at 327 to 328 per Gray J; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179.
Case: Re Glew ; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 , 198 ALR 331
Outcome: cited
construing these provisions His Honour Justice Lindgren in Re Glew ; Glew v Harrowell of Hunt &amp; Hunt Lawyers [2003] FCA 373 , 198 ALR 331 at 333 to 334 reviewed the authorities and observed (some citations omitted): [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a "prima facie case", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 30 ALR 433 , 44 FLR 135] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a "prima facie case" ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the court for the purposes of s 40(1)(g) , the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the court should be satisfied that the debtor has a claim deserving to be finally determined. This was subsequently characterised by His Honour at [64] as a " relatively low threshold ".
Case: Goldberg v Morrow [2005] FCA 1038
Outcome: applied
the certificate of taxation as issued under the seal of the Family Court correctly identified the amount of the judgment and the interest then payable. A costs order may constitute a " final order " for the purposes of s 40(1)(g): Goldberg v Morrow [2005] FCA 1038 at [19] per Crennan J. The order upon which the bankruptcy notice was here issued is considered to be a " final order ". A submission that the certificate of taxation had been fraudulently or improperly obtained is without substance. The factual foundation for the attack upon the certificate focussed upon the date of judgment. No date of judgment is set forth in the certificate itself. An order subsequently made on 28 November 2003 by the Family Court, however, corrected under the " slip rule " the date of judgment from 18 October 2001 to 2 November 2001. But that correction, it is considered, does not vitiate the bankruptcy notice. Again, there was nothing on the face of the bankruptcy notice which was " capable of misleading " Ms Mead.
Case: Re Hansen; Ex parte Hansen (1985) 4 FCR 590
Outcome: cited
present relevance is whether a mistake in the name of the creditor vitiates a bankruptcy. In Re Hansen; Ex parte Hansen (1985) 4 FCR 590 Beaumont J concluded that there was a formal defect in a bankruptcy notice issued in the name of " Mortgage Guaranty Insurance Corporation of Australia Limited ". That company had, however, changed its name to " MGICA Limited ". His Honour at 592 concluded: Strict compliance with the requisites of a bankruptcy notice is essential to its validity and if the notice is capable of misleading the debtor in a material respect, the court will not inquire whether the debtor has in fact been misled: it is sufficient that he could be misled ... He concluded at 594 as follows: In my opinion, it is essential to the validity of a bankruptcy notice that the judgment debtor be in no reasonable doubt as to the identity of the judgment creditor. In the present case, the judgment creditor was identified by a name which it had abandoned some considerable time previously. That name was quite different from the name of the judgment creditor at the time of issue of the bankruptcy notice and the judgment debtor could hardly be expected to connect the two corporate names. The judgment debtor could thus have been misled as to the identity of the party with whom he had to deal in order to comply with the requirements of the bankruptcy notice. The notice was accordingly defective ... Similarly, in McWilliam v Jackson [2000] FCA 175 , 96 FCR 561 Wilcox J concluded that a bankruptcy notice that identified the creditor as "Anthony Jackson &amp; Ors" rather than "Anthony Jackson" was defective.
Case: Killoran v Duncan [1999] FCA 1574
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71
Outcome: cited
substantive defect in a bankruptcy notice may result in its invalidity. In Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 Mason CJ, Wilson, Brennan and Gaudron JJ reviewed the authorities and concluded at 79 to 80 (citations omitted): The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice ... In such cases the notice is a nullity whether or not the debtor in fact is misled ... If the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential requirements of s. 41(2)(a)(i) &#8212; the only requirements presently relevant &#8212; are met. Understatement of the amount due, whether it be an understatement of the judgment debt or of interest payable thereon, will thus constitute a defect which is substantive rather than formal only if the understatement is objectively capable of misleading the debtor as to what is necessary for compliance with the notice. It may be that, in a given case, understatement is capable of misleading the judgment debtor particularly if the notice is capable of producing uncertainty as to whether the debtor is required to pay the amount in fact due or the amount specified in the notice. In such a case uncertainty arises, not merely from the understatement, but from the understatement in the context of the particular bankruptcy notice. No such uncertainty arises if it is clear that payment of the amount specified in the notice will constitute compliance with the notice. It is " the capacity of the bankruptcy notice to mislead the debtor to whom the notice is directed that matters, not some hypothetical debtor ": Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494 at 500 per Lockhart J.
Case: Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 , 138 FCR 324
Outcome: applied
in Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986) Beaumont J concluded that a bankruptcy notice was not defective by reason of the debtor being identified as " Trevor John McSwiney " rather than " Trevor Peter McSwiney ". His Honour concluded that "... the defect is cured by s 306(1) ". Section 306 of the Bankruptcy Act provides as follows: Formal defect not to invalidate proceedings (1) Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. (2) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Act or under a personal insolvency agreement entered into under this Act does not invalidate an act done by him or her in good faith. Formal errors in a bankruptcy notice do not result in its invalidity unless they cause " substantial injustice ": Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 at [37] , [2004] FCA 490 ; 138 FCR 324 at 336 per Weinberg J.
Case: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81
Outcome: cited
Court also has an implied jurisdiction to set aside a bankruptcy notice as an abuse of process: Re Sterling; Ex parte Esanda Ltd [1980] FCA 61 ; (1980) 44 FLR 125. An abuse of process may be made out if the purpose in issuing the bankruptcy notice is to put pressure on a debtor to pay the debt rather than to invoke the Court's jurisdiction in relation to insolvency: Brunninghausen v Glavanics [1998] FCA 230 ; Killoran v Duncan [1999] FCA 1574 at [12] per Gyles J. See also: Maxwell-Smith v S &amp; E Hall Pty Ltd [2006] FCA 825 , 233 ALR 81 ; Cavoli v Etl [2007] FCA 1191 at [17] , 5 ABC(NS) 363 at 369 per Heerey J; Slack v Bottoms English Solicitors [2002] FCA 1445 at [15] to [18] per Spender J; Davidova v Murphy [2009] FCA 601 at [88] . It is also an abuse of process for a judgment creditor to pursue bankruptcy proceedings " for the purpose of stifling litigation ": Bayne v Baillieu; Bayne v Riggall [1908] HCA 39 ; (1908) 6 CLR 382 at 396 per Griffith CJ.
Case: Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986)
Outcome: cited
in Re McSwiney; Ex parte Davies (unreported, FCA, Beaumont J, P 1611 of 1986, 24 November 1986) Beaumont J concluded that a bankruptcy notice was not defective by reason of the debtor being identified as " Trevor John McSwiney " rather than " Trevor Peter McSwiney ". His Honour concluded that "... the defect is cured by s 306(1) ". Section 306 of the Bankruptcy Act provides as follows: Formal defect not to invalidate proceedings (1) Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court. (2) A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Act or under a personal insolvency agreement entered into under this Act does not invalidate an act done by him or her in good faith. Formal errors in a bankruptcy notice do not result in its invalidity unless they cause " substantial injustice ": Kyriackou v Shield Mercantile Pty Ltd [2004] FCA 490 at [37] , [2004] FCA 490 ; 138 FCR 324 at 336 per Weinberg J.
Case: McWilliam v Jackson [2000] FCA 175 , 96 FCR 561
Outcome: cited
present relevance is whether a mistake in the name of the creditor vitiates a bankruptcy. In Re Hansen; Ex parte Hansen (1985) 4 FCR 590 Beaumont J concluded that there was a formal defect in a bankruptcy notice issued in the name of " Mortgage Guaranty Insurance Corporation of Australia Limited ". That company had, however, changed its name to " MGICA Limited ". His Honour at 592 concluded: Strict compliance with the requisites of a bankruptcy notice is essential to its validity and if the notice is capable of misleading the debtor in a material respect, the court will not inquire whether the debtor has in fact been misled: it is sufficient that he could be misled ... He concluded at 594 as follows: In my opinion, it is essential to the validity of a bankruptcy notice that the judgment debtor be in no reasonable doubt as to the identity of the judgment creditor. In the present case, the judgment creditor was identified by a name which it had abandoned some considerable time previously. That name was quite different from the name of the judgment creditor at the time of issue of the bankruptcy notice and the judgment debtor could hardly be expected to connect the two corporate names. The judgment debtor could thus have been misled as to the identity of the party with whom he had to deal in order to comply with the requirements of the bankruptcy notice. The notice was accordingly defective ... Similarly, in McWilliam v Jackson [2000] FCA 175 , 96 FCR 561 Wilcox J concluded that a bankruptcy notice that identified the creditor as "Anthony Jackson &amp; Ors" rather than "Anthony Jackson" was defective.
Case: Mead v Mead [2009] FMCA 637
Outcome: affirmed
proceeding NSD 774/2009 the Appellant, Ms Yang, appeals against a decision of a Federal Magistrate delivered on 15 July 2009: Yang v Mead [2009] FMCA 636. In proceeding NSD 775/2009 the Appellant, Ms Mead, appeals against a decision of the same Magistrate delivered on the same date: Mead v Mead [2009] FMCA 637. Finally, the fact that Ms Mead was in custody when the bankruptcy notice was served does not relieve her of the obligation to comply with the terms of the notice " within 21 days ". And, in any event, she in fact commenced proceedings in the Federal Magistrates Court within that period: [2009] FMCA 637 at [3] . The challenge to the validity of the bankruptcy notice served upon Ms Mead is thus rejected. Before the Federal Magistrate Ms Mead claimed that she had a " counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt " within the meaning of and for the purposes of s 40(1)(g) of the Bankruptcy Act . The application to set aside the bankruptcy notice as filed in the Federal Magistrates Court claimed this " counter-claim, set-off or cross demand " in the following terms: 1. ... 2. ... 3. Cross claim husband breached marriage contract, I singly looked after children 12 years. 4. Set aside &amp; cross claim husband money I put in $446848 Annexure D prior to marriage to purchase Ermington home. 5. Set aside &amp; cross claim husband money I put in $445059 Annexure D by selling Ryde unit at 1/3 Hatton Street Ryde 2112 and others. The reasons for decision of the Federal Magistrate address both: two " claims " referred to in the application &#8212; namely, one for $446,848 and the other for $445,059; and an application that an order be made that, as the Federal Magistrate described it, " Mr Mead and his solicitors pay her $892,907 and be reported 'to the law society and bar association to refrain their wrongful and unethical actions '". The sum of $892,907 was said to be the total of $446,848 and $445,059. The total does not correspond. The sum of $446,848 was said to consist of an amount of $60,000 allegedly owed to Ms Mead since 15 September 1982 and interest. The $60,000 was said to be the contribution she had made in 1982 in connection with the purchase of a former matrimonial home. The sum of $445,059 was comprised of a sum of $126,838.73 (claimed to have been contributed to the marriage on 26 April 1994 through a company called Hypec Electronics Pty Ltd) together with interest.
Case: CAM v LGM [2009] FamCA 251
Outcome: referred to
should be noted that any entitlement to monies said to be owed to Ms Mead from her former husband has been the subject of detailed consideration by the Family Court: CAM v LGM [2009] FamCA 251. Indeed, O'Ryan J there concluded in part as follows: 2357. Both the Husband and the Wife worked very hard to establish and maintain what became a very successful business. This effort enabled significant and valuable assets to be accumulated. However subsequent to the separation of the Husband and the Wife there ensued a bitter and protracted matrimonial conflict. The conflict has been played out in numerous courts. There has now been an extraordinary dissipation of ascertained assets that the Husband and the Wife accumulated with the result that the majority of the identified wealth has gone. As well, as I have said before, the public cost is incalculable. Further, the Wife has been imprisoned and that experience is but one of the destructive outcomes. There are two children who were hardly mentioned but who must be aware of and affected by the enormity of the conflict between their parents. I cannot adequately explain it. However it may be that the explanation is simply that it is a case about money and thus perhaps the conflict has no boundaries. 2358. Therefore coming back to what this case is about, I have no doubt that the Wife has undisclosed assets and they are probably located overseas and will never be ascertained. The assets are probably located in Taiwan and the ability of the Wife to control and deal with such assets is assisted by the efforts of various people some of whom are within the jurisdiction and some of whom are not. I am also of the opinion that the actions of the Wife, aided by Grace Yang, the late Mr Yang, Mrs Yang and others to undermine any possible interests and claims of the Husband have resulted in an extraordinary waste of ascertained assets that were accumulated by the efforts of the Husband and the Wife. That was the conclusion of an experienced Judge of the Family Court who had heard the evidence relevant to the proceedings for a period of over 70 days. The reference in Ms Mead's application to the " Ermington home " and the " Ryde unit " were references to property the subject of consideration by the Family Court, as were the entitlements said to arise in respect to Hypec Electronics Pty Ltd. Due to her being in custody, Ms Mead contends that she was not able to attend the greater proportion of that hearing. But she did attend in person or by videolink from her place of custody to the Family Court on each day of the hearing. The learned Federal Magistrate whose decision is now under appeal had also considered the submissions sought to be advanced by Ms Mead and Ms Yang when challenging the bankruptcy notices now in issue. There is also a protracted history of litigation between the parties to the present proceedings, and related entities, in the Supreme Court of New South Wales.
Case: Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179
Outcome: cited
the outset of the hearing of the appeals on 12 October 2009, Ms Mead sought to file in her appeal a Notice of a Constitutional Matter pursuant to s 78B of the Judiciary Act 1903 (Cth). Notwithstanding the terms in which that Notice was expressed, Ms Mead explained that it was not intended to raise any matter arising under the Constitution in this Court. Rather than this Court being under a possible " duty ... not to proceed ", Ms Mead was anxious for this Court to hear and resolve her claims immediately. Such a position, it may be noted, was inconsistent with the application to have the appeals in effect adjourned. The Notice was, in any event, understood as being more directed to the alleged failure on the part of the Federal Magistrate to give proper weight to Ms Mead's inability to comply with the 21 day period prescribed in the bankruptcy notice due to her being in custody. In the absence of any matter arising under the Constitution being raised in this Court, the appeal proceeded to be heard on 12 October 2009. Had it been necessary to resolve an alternative contention, namely that the Notice imposed upon this Court a " duty ... not to proceed ", that contention would have been rejected: cf Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918 at [103] , [2004] FCA 918 ; 56 ATR 371 at 396 per French J; Danielsen v Onesteel Manufacturing Pty Ltd [2009] SASC 56 at [30] , [2009] SASC 56 ; 224 FLR 319 at 327 to 328 per Gray J; Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179.