Udovenko, Michael & Ors v Mitchell, Alan Bernard [1997] FCA 1312

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - Appeal from sequestration orders - petitioning creditor a solicitor recovering fees and disbursements from former clients where bills for costs and disbursements failed to comply with s 198 (now s 192) of the Legal Profession Act 1987 (NSW) - whether waiver by appellants of requirements of s 198 - whether respondent's claim sufficiently established and quantified to constitute a debt "payable either immediately or at a certain future time".

Bankruptcy Act 1966 (Cth) ss 44(1)(b), 52(2) Legal Profession Act 1987 (NSW) s 192 (formerly s 198) Corney v Brien (1951) 84 CLR 343, appl Dodd v Gillis (1989) 16 NSWLR 623, dist Jarena Pty Ltd v Sholl Nicholson Pty (1996) 136 ALR 427, refd Motor Terms Co Pty Ltd v Liberty Insurance Ltd (1967) 116 CLR 177, refd Re Devy; Ex parte BBC Hardware Ltd (1996) 67 FCR 355, appr Wren v Mahony (1972) 126 CLR 212, appl MICHAEL UDOVENKO & ORS v ALAN BERNARD MITCHELL NG 187 of 1997 JUDGES: DAVIES, FOSTER & CARR JJ DATE: 28 NOVEMBER 1997 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 187 of 1997

BETWEEN: MICHAEL UDOVENKO

First Applicant

HELEN UDOVENKO

Second Applicant

WOLODYMYR UDOVENKO

Third Applicant

AND: ALAN BERNARD MITCHELL

Respondent

CORAM: DAVIES, FOSTER & CARR JJ

DATE OF ORDER: 28 NOVEMBER 1997

WHERE MADE: SYDNEY

minutes of order

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Orders 2, 3, 4, 5 and 6 made on 19 February 1997 be set aside and that in lieu thereof it be ordered that the petition be dismissed with costs. 3. The respondent pay the appellants' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.