Biritz v National Australia Bank Ltd [2001] FCA 1635

FEDERAL COURT OF AUSTRALIA

Biritz v National Australia Bank Ltd [2001] FCA 1635

BANKRUPTCY – application to extend time for compliance and set aside bankruptcy notice – review of Registrar's decision to dismiss application – bankruptcy notice founded on an order as to taxation which channelled two costs orders – whether bankruptcy notice relied on more than one judgment debt – debtor claimed orders were procured by fraud – whether Court should go behind judgment debt – whether any fresh evidence of fraud – whether debtor had a counter-claim, set-off or cross demand which could not have been set up in the proceeding in which the costs order was made Bankruptcy Act 1966, s 30, s 40(1)(g), s 41 Federal Court of Australia Act 1976 (Cth), s 35A(5), s 35A(6) Federal Court Rules, O 77, r 8 Re Kwiatek and Kwiatek (1989) 21 FCR 374 referred Gray v Ball (unreported, Federal Court of Australia, Sundberg J, 24 December 1997) referred Martin v Commonwealth Bank of Australia [2001] FCA 87 referred Olivieri v Stafford (1989) 24 FCR 413 referred Re Sterling; Ex parte Esanda Ltd (1980) 30 ALR 77 referred Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 referred Re Hutchins; Ex parte Wall (unreported, Federal Court of Australia, Spender J, 6 May 1998) referred Wenkart v Abignano [1999] FCA 354 referred Cummings v Raeffaele (2000) 175 ALR 107 applied Emerson v Wreckair Pty Limited (1992) 33 FCR 581 cited Kirk v Ashdown [1999] FCA 522 cited Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 cited Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346 referred Re Zakrzewski (2000) 178 ALR 694 referred James v Abrahams (1981) 34 ALR 657 referred Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd (1980) 44 FLR 135 referred Re James; Ex parte Carter Holt Harvey Roofing (Australia) Pty Ltd (1993) 46 FCR 183 referred Smart v Esanda Finance Corporation Limited [2000] FCA 235 referred ERIKA BIRITZ v NATIONAL AUSTRALIA BANK LIMITED V 7079 of 2001 KENNY J 20 NOVEMBER 2001 MELBOURNE