McFarlane, Malcolm v Eastern Pastoral Pty Ltd t/as Agricultural Assessments [1998] FCA 1315

FEDERAL COURT OF AUSTRALIA BANKRUPTCY – Bankruptcy notice – non-compliance – validity of notice – two addresses given for creditor, one being solicitor's address – both addresses reasonably practicable for payment of debt – application to deregister respondent company made but never pursued – requirements for counter-claim – no counter-claim made Bankruptcy Act 1966 (Cth) – s 41 James v Federal Commissioner of Taxation (1955)93 CLR 631 - cited Re Nugent (1985) 5 FCR 161 - applied Re Pugliese (1993) 44 FCR 536 - cited Re Brink (1980) 30 ALR 433 - cited

MALCOLM McFARLANE v EASTERN PASTORAL PTY LTD T/AS AGRICULTURAL ASSESSMENTS VG 7473 of 1998 BEFORE: RYAN JR PLACE: MELBOURNE DATE: 30 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7473 of 1998

BETWEEN: Malcolm McFarlane

Applicant

AND: Eastern Pastoral Pty Ltd t/as Agricultural Assessments

Respondent

JUDICIAL REGISTRAR: RYAN

DATE OF ORDER: 30 SEPTEMBER 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application to set aside Bankruptcy Notice VN 738 of 1998 issued 14 May 1998 be dismissed. 2. The applicant pay the respondent's costs of and incidental to the application, as agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7473 of 1998

BETWEEN: Malcolm McFarlane

Applicant

AND: Eastern Pastoral Pty Ltd t/as Agricultural Assessments

Respondent

JUDICIAL REGISTRAR: RYAN

DATE: 30 SEPTEMBER 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT (DELIVERED EX-TEMPORE) On 30 June 1998 the applicant filed an application to set aside a bankruptcy notice issued on 14 May. The applicant has filed an affidavit in support of his application that the bankruptcy notice be set aside. In the affidavit numerous assertions are made as to: · the history of the matter · the judgment debt · an instalment order · payments under the instalment order · a dispute between the applicant and an employee of the respondent's solicitors · direct negotiations between the applicant and directors of the respondent company · a statement by the applicant that he cannot make any instalment payments until matters raised (in correspondence with the respondent's solicitors) are satisfied · certain defects allegedly existing in the present bankruptcy notice · an application for deregistration of the respondent company as a defunct company filed 28 August 1997 · the failure of the respondent to refer to any indebtedness by the applicant in the balance sheet as at May 1997 annexed to the respondent's Notice of Intention to Deregister the respondent company and signed by a director of the respondent company on 11 August 1997 · the failure of the respondent to list the judgment debt as an asset of the company in the above balance sheet · certain allegations against the respondent's solicitors including an expression of belief by the applicant that the bankruptcy notice is an abuse of process. I have summarised the applicant's assertions irrespective of the relevance or irrelevance of some of them because the applicant is unrepresented, appears for himself without the assistance of counsel and I wish to record the case he puts in support of setting aside the bankruptcy notice. However, it must also be recorded that the application to set aside the bankruptcy notice is based on three grounds: (a) the bankruptcy notice is defective in relation to the creditor's address (b) the bankruptcy notice is defective in relation to clause 2 of the notice (c) the applicant has a counter-claim or set-off against the respondent.