Maxwell-Smith v S & E Hall Pty Ltd [2002] FCA 25

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith v S & E Hall Pty Ltd [2002] FCA 25

Practice and procedure – issue estoppel and res judicata – applications under Trade Practices Act 1974 in relation to building dispute – whether applications seek to relitigate matters decided by Consumer Claims Tribunal and Supreme Court – elements of Federal Court proceedings have been determined between parties – motion for dismissal under Order 20 Rule 2 allowed.

BANKRUPTCY – applications to set aside bankruptcy notice dismissed.

Bankruptcy Act 1966 (Cth) Consumer Claims Tribunals Act 1976 (NSW) Trade Practices Act 1974 (Cth) s51AB, s52 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 referred to and applied Henderson v Henderson (1843) 5 Hare 100; 67 ER 313 referred to Wentworth v Rogers (1986) 6 NSWLR 534 referred to Cabassi v Vila (1940) 64 CLR 130 referred to Bright v Bright [1954] P 270 referred to Spencer Bower, Turner and Handley Res Judicata (3rd Ed) par [182] Eugene and Inge Maxwell Smith v S & E Hall Pty Ltd N895, N896, N7225 and N7226 of 2001 ALLSOP J SYDNEY 25 JANUARY 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N7225 and N7226 of 2001

BETWEEN: EUGENE AND INGE MAXWELL-SMITH

APPLICANTS

AND: S & E HALL PTY LTD

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 25 JANUARY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the applications in the matters numbered N7225 and N7226 of 2001 filed 4 May 2001 seeking to set aside the bankruptcy notice dated 26 March 2001 and addressed to the applicants be dismissed; and 2. the applicants (Mr and Mrs Maxwell-Smith) pay the costs of the respondent to the applications. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA