Biritz v National Australia Bank Limited [2002] FCAFC 172

FEDERAL COURT OF AUSTRALIA

Biritz v National Australia Bank Limited [2002] FCAFC 172 BANKRUPTCY – bankruptcy notice – application to set aside – validity of notice – two costs orders – single taxation – whether notice based on one final order – whether permissible to "go behind" orders – standard of proof – whether counter-claim, set-off or cross demand established Bankruptcy Act 1966 (Cth) s 52(1) Supreme Court (General Civil Procedure) Rules 1996 (Vic) O 63.10, O 63.11, O 63.56

Bankruptcy Notice, In re A (1906) 96 LT 133 referred to Catalano v Commonwealth Bank of Australia (Sundberg J, 3 July 1997, unreported) referred to Commonwealth Bank v Horvath (Junior) (1999) 161 ALR 441 referred to Corney v Brien (1951) 84 CLR 343 applied Crump, re, Ex parte Crump (1891) 64 LT 799 referred to Cummings v Raeffaele (2000) 175 ALR 107 referred to Ebert v Union Trustee Company of Australia Ltd (1960) 104 CLR 346 applied Low, In re, Ex parte Argentine Gold Fields Ltd [1891] 1 QB 147 referred to Revell, Ex parte, In re Tollemache (No.1) (1884) 13 QBD 720 referred to Wheeler (A Debtor), In re [1982] 1 WLR 175 discussed BIRITZ v NATIONAL AUSTRALIA BANK LIMITED V 1271 of 2001 SACKVILLE, FINKELSTEIN & ALLSOP JJ MELBOURNE 30 MAY 2002 IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 1271 of 2001

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN: ERIKA BIRITZ

Appellant

AND: NATIONAL AUSTRALIA BANK LIMITED

Respondent

JUDGES: SACKVILLE, FINKELSTEIN & ALLSOP JJ

DATE OF ORDER: 30 MAY 2002

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA