Thorpe, Andrew Cecil v Bristile Ltd [1997] FCA 1369

FEDERAL COURT OF AUSTRALIA BANKRUPTCY - bankruptcy notice based on judgment for costs of unsuccessful application by appellant for interlocutory injunction in Supreme Court proceedings - appellant claimed to have cross-demand by reason of relief sought by him in those proceedings - appellant's success in those proceedings depended upon establishing his priority of entitlement to certain land over respondent's interest as caveator - appellant had provided all funds for purchase of that land but caused title to be registered in name of business associate ("X") - X charged land to secure payment of moneys owing to respondent - respondent lodged caveat to protect its interests as chargee - appellant subsequently obtained court order that X transfer land to him - appellant unsuccessful at first instance in obtaining interlocutory injunction requiring respondent to remove caveat - appeal to Full Court unsuccessful - action still on foot - whether appellant had shown a prima facie case of entitlement to damages on basis of equitable interest in priority to respondent's interest in the land. BANKRUPTCY NOTICE - notice based on order for costs to be taxed - costs taxed - notice referred to order but not to taxation - whether notice defective.

Bankruptcy Act 1966 (Cth) ss 41(1)(g), 41(7), 306 Transfer of Land Act 1893 (WA) s 140 Supreme Court Act 1935 (WA) s 142

James v Abrahams (1981) 34 ALR 657 applied Re Lentini; Ex parte Lentini v CSR Limited (1991) 29 FCR 363 considered Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 applied Re Cartwright; Ex parte Cartwright v Barker [1975] 2 All ER 970 considered Re Gibbs; Ex parte Triscott (1995) 133 ALR 718 considered Wilmot v Buckley (1984) 2 FCR 540 considered Re Wimborne (1979) 24 ALR 494 applied Re Cartwright; Ex parte Cartwright v Barker [1975] 2 All ER 970 considered Re Faithfull (1885) 14 QBD 627 considered Re Alexander [1892] 1 QB 216 considered James v Federal Commissioner of Taxation (1955) 93 CLR 645 applied State Planning Commission v Della Vedova (1992) 7 WAR 81 considered Latec Investments Limited v Hotel Terrigal Pty Limited (in liquidation) (1965) 113 CLR 265 applied Heid v Reliance Finance Corporation Proprieptary Limited (1983) 154 CLR 326 applied Australian Guarantee Corporation (NZ) Ltd v CFC Commercial Finance Ltd [1995] 1 NZLR 129 referred to J & H Just (Holdings) Pty Limited v The Bank of New South Wales (1971) 125 CLR 546 referred to Lapin v Abigail (1930) 44 CLR 166 applied Jacobs v Platt Nominees Pty Ltd [1990] VR 146 referred to Hunt v R M Douglas (Roofing) Ltd [1990] 1 AC 398 followed ANDREW CECIL THORPE v BRISTILE LTD No. WAG 92 of 1997 BURCHETT, CARR & R.D.NICHOLSON PERTH 5 DECEMBER 1997