Edwards v McVeigh [2004] FCA 1374

FEDERAL COURT OF AUSTRALIA

Edwards v McVeigh [2004] FCA 1374 BANKRUPTCY – appeal from sequestration order –– where bankruptcy notice was founded upon an order for costs against the appellant – whether costs order was the result of an error of law on the part of the District Court Judge in failing to make an order for costs against the respondent as liquidator – whether the appellant has a set-off against the respondent with respect to the company's costs because the respondent was obliged as liquidator to pay them in priority to his own costs and remuneration – whether the order is a futility given the appellant's age, state of health and the fact that he has no assets

Statutes Bankruptcy Act 1966 (Cth) s 556(1) Corporations Act 2001 (Cth) s 40(1)(g)

Cases Belar Pty Ltd (in liq) v Mahaffey [2000] 1 Qd R 477 Cons Beni-Felkai Mining Co, In Re [1934] 1 Ch 406 Cited Emanuel Management Pty Ltd (in liquidation) v Foster's Brewing Group Ltd [2003] QSC 299 Cons Hypec Electronics Pty Ltd (in liq) v Mead [2004] NSWSC 731 Refd Jonsson v Tim Ferrier Pty Ltd [2004] QSC 156 Cons Kimtran Pty Ltd v Downie [2004] 1 Qd R 651 Cons Lofthouse, in the matter of Riverside Nursing Care Pty Ltd (subject to deed of company arrangement) [2004] FCA 93 Cons Macks v Hedley (1999) 94 FCR 188 Refd Metalloy Supplies Ltd (in liq) v MA (UK) Ltd [1997] 1 All ER 418 Refd Pacific Coast Syndicate Ltd, In Re [1913] 2 Ch 26 Cited Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572 Refd TOMMY EDWARDS v DEAN ROYSTON MCVEIGH Q128 of 2004 KIEFEL J BRISBANE 27 OCTOBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q128 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: TOMMY EDWARDS

APPELLANT

AND: DEAN ROYSTON MCVEIGH

RESPONDENT