Dudzinski v Kellow [2002] FCA 665

FEDERAL COURT OF AUSTRALIA

Dudzinski v Kellow [2002] FCA 665 BANKRUPTCY – application to set aside bankruptcy notice and extend time for compliance with the bankruptcy notice – bankruptcy notice based on the debt payable by the debtor arising out of the order for costs made by the Full Court of the Federal Court in favour of the ten respondents in relation to which a certificate of taxation in the sum of $17,700 was issued – whether order for costs made by the Full Court is a final judgment – judgment of a superior court is a final judgment on which execution may issue even if that judgment is liable to subsequently be set aside – whether applicant has a counter-claim, set-off or cross-demand pursuant to s 41(7) Bankruptcy Act 1966 (Cth) – a debtor may only raise a cross demand against all creditors jointly – joint debts cannot be set off against several debts – applicant must show a prima facie case with a fair prospect of success – s 41(6A) Bankruptcy Act 1966 (Cth) requires that proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued be instituted by the debtor – discretionary reasons why an extension of time for compliance with the bankruptcy notice should not be granted – proceedings in the High Court not prosecuted with due diligence – application for special leave to appeal from the judgment of the Full Court to the High Court has been deemed to be abandoned or has been abandoned – judgment of the Full Court has not been stayed. Bankruptcy Act 1966 (Cth), s 41(7), s 41(6A) Federal Court Rules, O 62 r 46 Stec v Orfanos [1999] FCA 457, applied Re Davison (1997) 147 ALR 259, cited WALDEMAR DUDZINSKI v AYNSLEY KELLOW and OTHERS No Q 7003 of 2002 SPENDER J BRISBANE 22 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q7003 OF 2002