Cumins v Deputy Commissioner of Taxation [2008] FCAFC 185

FEDERAL COURT OF AUSTRALIA

Cumins v Deputy Commissioner of Taxation [2008] FCAFC 185 BANKRUPTCY – sequestration order made – appeal against sequestration order – argued bankruptcy notice invalid due to overstatement of total debt owing – payments made and / or credits allowed not included in bankruptcy notice – whether court should go behind bankruptcy notice – no misstatement found in bankruptcy notice – no failure to meet a requirement made essential by the Bankruptcy Act 1966 (Cth) – bankruptcy notice did not reasonably mislead debtor BANKRUPTCY – notice of alleged misstatements under s 41(5) Bankruptcy Act 1966 (Cth) – appellant argued for extension of time to give notice under s 33(1)(c) – extension of time properly regulated by terms of s 41(6A) – once time for compliance with bankruptcy notice has expired there can be no doubt that an act of bankruptcy has been committed – no exceptional circumstances PRACTICE AND PROCEDURE – request for leave to raise an argument not raised before primary judge – whether in interests of justice – argument sought to be put by appellant bound to fail – request refused Bankruptcy Act 1966 (Cth) ss 33(1)(c), 40, 41(1), 41(5), 41(6), 41(6A), 41(6C) Taxation Administration Act 1953 (Cth) s 8AAGA, Sch 1 s 18-15(1) Adams v Lambert (2006) 228 CLR 409 cited Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 cited Aussie Vic Plant Hire Pty Ltd v Esanda Finance Corporation Ltd (2008) 232 CLR 314 cited Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 cited Coulton v Holcombe (1986) 162 CLR 1 cited David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 cited Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 cited Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 cited Re Bedford; Ex parte H C Sleigh (Qld) Pty Ltd (1967) 9 FLR 497 cited Re Manion; Ex parte Custom Credit Corporation Ltd (in Liq) [1996] FCA 343 cited Re Wilhelmsen; Ex parte Gould (1986) 11 FCR 107 cited Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 cited Wilson v Official Trustee in Bankruptcy [1999] FCA 1760 cited Wren v Mahony (1972) 126 CLR 212 cited BRIAN CUMINS v DEPUTY COMMISSIONER OF TAXATION WAD 123 of 2008 BRIAN CUMINS v DEPUTY COMMISSIONER OF TAXATION