Croker v Commissioner of Taxation [2005] FCA 127

FEDERAL COURT OF AUSTRALIA Croker v Commissioner of Taxation [2005] FCA 127

BANKRUPTCY – application to set aside bankruptcy notice where overstatement of amount due by debtor – certificate of costs issued pursuant to s 208J of the Legal Profession Act 1987 (NSW) is a final judgment or order for the amount of unpaid costs and interest payable in respect of that amount only – costs of registering the certificate may not properly be added upon the filing of that certificate – application allowed – applicant's damages claim dismissed as no reasonable cause of action disclosed Legal Profession Act 1987 (NSW) s 208J(3) Federal Court of Australia Act 1976 (Cth) s 56 Local Courts (Civil Claims) Act 1970 (NSW) s 39(1) Service & Execution of Process Act (Cth) s 107(1)(a) Bankruptcy Act 1966 (Cth) s 33(1)(b), 41(5)

Federal Court Rules Order 1 rule 4, Order 11 rule 16, Order 20 rule 2

Bhattacharya v Berger [1999] FCA 883 (on appeal [1999] FCA 1302) cited Croker v Federal Commissioner of Taxation (2003) 52 ADR 226 cited Seovic Civil Engineering Pty Ltd v Groeneveld (1999) 87 FCR 120 considered Walsh v Deputy Federal Commissioner of Taxation (1984) 156 CLR 337 applied

P McQuade & M Gronow, Australian Bankruptcy Law and Practice, 5th ed, Lawbook Co, Sydney, 1996 CLAYTON ROBERT CROKER v COMMISSIONER OF TAXATION NSD 1760 OF 2004 HELY J 24 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1760 OF 2004

BETWEEN: CLAYTON ROBERT CROKER

APPLICANT AND: COMMISSIONER OF TAXATION

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 24 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The bankruptcy notice issued by the respondent against the applicant on 29 October 2004 is set aside. 2. The application filed by the applicant on 29 November 2004 is dismissed pursuant to Order 20 rule 2 of the Federal Court Rules insofar as the application includes a claim for the award of damages. 3. The notice of motion filed by the respondent on 21 December 2004 is otherwise dismissed. 4. No order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.