Croker v Commissioner of Taxation [2003] FCAFC 23

FEDERAL COURT OF AUSTRALIA

Croker v Commissioner of Taxation [2003] FCAFC 23 BANKRUPTCY – bankruptcy notice based on non-existent judgment – statutory provision for interest on registered judgment incorrectly stated – bankruptcy notice set aside.

Re Bayliss (1971) 19 FLR 14 followed The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 applied CLAYTON ROBERT CROKER v COMMISSIONER OF TAXATION N 1014 of 2002 LEE, WHITLAM and JACOBSON JJ 25 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1014 of 2002

On appeal from a Judge of the Federal Court of Australia

BETWEEN: CLAYTON ROBERT CROKER

APPELLANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGES: LEE, WHITLAM and JACOBSON JJ

DATE OF ORDER: 25 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The orders made by Moore J on 18 September 2002 are set aside and in lieu thereof it is ordered that the bankruptcy notice issued on 18 June 2002 is set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1014 of 2002

On appeal from A Judge of the Federal Court of Australia

BETWEEN: CLAYTON ROBERT CROKER

APPELLANT

AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGES: LEE, WHITLAM and JACOBSON JJ

DATE: 25 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of Moore J ([2002] FCA 1157) dismissing with costs the appellant's application to set aside a bankruptcy notice. The essential background to the issue of that bankruptcy notice may be shortly stated. 2 On 17 March 2000 the High Court of Australia (Gummow and Kirby JJ), sitting in Sydney, refused with costs an application by the appellant for special leave to appeal from a judgment of the Supreme Court of New South Wales in favour of the respondent. The respondent's costs of the special leave application were subsequently allowed at $5,781.98 by the High Court's taxing officer in a certificate of taxation issued on 24 April 2001. 3 On 18 May 2001 judgment was entered for the respondent in the sum of $5,837.98 against the appellant in the Local Court at the Downing Centre in Sydney. The respondent lodged with the Official Receiver a certified copy of the entry of the Local Court judgment in order to apply for the subject bankruptcy notice, which was issued, almost one year later, on 18 June 2002. 4 The bankruptcy notice stated in paragraph 1 the respondent's claim to be owed by the appellant "a debt of $6,467.37 as shown in the Schedule". Paragraph 2 of the bankruptcy notice stated that a copy of the judgment relied upon by the respondent was attached. The attached document was a copy of the Certificate of Judgment of the Local Court judgment referred to above. The Schedule to the bankruptcy notice was in the following terms: "Schedule Column 1 Column 2 1. Amount of judgment or order $5,837.98 plus 2. Legal costs if ordered to be paid and a specific amount was not included in the $0-00 judgment or order (see Note 1, below) plus 3. If claimed in this Bankruptcy Notice, $629.39 interest accrued since the date of judgment or order(see Note 2, below) 4. Subtotal $6,467.37 less 5. Payments made and/or credits allowed since date of judgment or order $0-00 6. Total debt owing $6,467.37