Collett v Deputy Commissioner of Taxation [2001] FCA 426

FEDERAL COURT OF AUSTRALIA

Collett v Deputy Commissioner of Taxation [2001] FCA 426 STANLEY WILLIAM COLLETT v DEPUTY COMMISSIONER OF TAXATION Q 47 OF 2001 DRUMMOND J 9 APRIL 2001 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 47 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: STANLEY WILLIAM COLLETT

APPELLANT

AND: DEPUTY COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: DRUMMOND J

DATE OF ORDER: 9 APRIL 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The notice of motion be dismissed.

2. The appellant pay the petitioning creditor's costs of and incidental to the appellant's notice of motion, including reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 47 OF 2001

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: STANLEY WILLIAM COLLETT

APPELLANT

AND: DEPUTY COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: DRUMMOND J

DATE: 9 APRIL 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 I have before me a notice of motion that seeks an order setting aside a sequestration order made by the Federal Magistrates Court against the appellant, and, in the alternative, an order staying the operation of the sequestration order. 2 The appellant, Mr Collett, was made bankrupt by an order of the Federal Magistrates Court on 9 February 2001. He has lodged an appeal against the sequestration order, and the essence of the grounds for the appeal are as follows: 3 Firstly, "I have sufficient assets that if it were not for ill health they would be realized upon and my creditors paid in full" and secondly, that "upon completion of a successful District Court proceeding that the applicant is solvent". 4 That seems to me to be the essence of the grounds of appeal raised. These issues were canvassed before the Federal Magistrate but, notwithstanding what was said by Mr Collett, the Federal Magistrate concluded that a sequestration order should be made. 5 So far as the District Court proceedings mentioned in the notice of appeal are concerned, they originate in proceedings brought by a Mr and Mr Matthews against Mr Collett, claiming some $38,000 damages. Mr Collett has counter-claimed for approximately $400,000 damages against the Matthews. The Matthews, during the pendency of the District Court proceedings, brought bankruptcy proceedings against Mr Collett. Spender J refused a belated application to amend the petition to overcome deficiencies in it. He said that there was more than the mere assertion of a claim of entitlement to monies by Mr Collett, because there was a fully-particularised counter-claim in the District Court, sworn to be true and correct by Mr Collett, and which, as His Honour put it, was not, on the evidence, disputed by the petitioning creditors. His Honour added there is the further circumstance that, had the petitioning creditors served the bankruptcy notice on the respondent, the latter would have been able to apply under s 41(7) of the Act, to set aside the notice on the basis of his counter-claim in the District Court. In refusing the application for leave to amend the petition, Spender J said: