Schiffer v Pattison [2005] FCA 494

FEDERAL COURT OF AUSTRALIA

Schiffer v Pattison [2005] FCA 494 BANKRUPTCY – bankrupt discharged from bankruptcy – trustee issued proceedings in Federal Magistrates Court to recover money from bankrupt – trustee's calculation based upon assessments of amount of income bankrupt likely to have derived during certain specified contribution assessment periods – reasonable remuneration used as basis for calculations – no payment made – trustee issued certificate of outstanding contribution, filed in Federal Magistrates Court – trustee sought summary judgment against respondent – respondent challenged validity of certificate of outstanding contribution – respondent also filed purported cross-claim seeking declaratory relief – Federal Magistrate held no arguable defence raised, summarily dismissed cross-claim, and made findings as to respondent's lack of cooperation with trustee – appeal to Federal Court – whether leave to appeal required from summary judgment – whether leave to appeal should be granted – whether appellant needed to pursue cross-claim for declaratory relief – whether Federal Magistrate should have dealt with appellant's challenges to validity of key documents – whether Federal Magistrate erred by having regard to irrelevant considerations

Bankruptcy Act 1966 (Cth) ss 139S, 139W(1), 139Y, 139ZG(4) and (5)

Re Ellis; Ex parte Jefferson & Stevenson (unreported, Federal Court of Australia, 17 February 1995) discussed Kluska v Kluska [1965] VR 457 referred to Tampion v Anderson (1974) 3 ALR 414 considered Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 considered MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 at [6] referred to Cox Brothers (Australia) Ltd v Cox (1934) 50 CLR 314 followed Standard Discount Co v La Grange (1877) 3 CPD 67 referred to In re a Debtor (1903) 19 TLR 152 referred to Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 referred to Weatherall v Satellite Receiving Systems (Aust) Pty Ltd (1999) 30 ACSR 698 referred to National Mutual Life Association of Australasia Ltd v Grosvenor Hill (Qld) (2001) 183 ALR 700 referred to Cubillo v Commonwealth (2001) 112 FCR 455 at 503 referred to Johnston v Cameron (2002) 124 FCR 160 at [8] followed Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed Geoffrey Inc v Luik (1997) 38 IPR 555 referred to Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 followed McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [12]–[19] referred to Energex Ltd v Alstom Australia Ltd [2004] FCA 575 at [157]-[161] referred to HORST DIETER SCHIFFER v PAUL ANTHONY PATTISON V436 OF 2004 WEINBERG J 26 APRIL 2005 MELBOURNE