Moran v Lydiard Financial Services Pty Ltd [2005] FCA 1167

FEDERAL COURT OF AUSTRALIA

Moran v Lydiard Financial Services Pty Ltd [2005] FCA 1167 BANKRUPTCY – bankruptcy notice – setting aside – orders of taxing officer, fixing costs, attached to notice – orders under which taxing officer taxed costs not attached – whether notice invalid – whether defect curable COURTS AND JUDGES – notice of motion – whether filed before time limit expired – left at registry after 4.00 pm on last day of time limit – stamped as received at registry on that day – whether registry open when officer available after hours of opening prescribed by rules – whether litigant entitled to rely on notice advertising times of opening of registry

Federal Court of Australia Act 1976 (Cth) s 35A(1)(h) Bankruptcy Act 1966 (Cth) ss 41(1), 41(2), 306(1) Federal Court Rules O 77 r 7, O 77 r 8(2) and (3), O 1 r 5A(1)(a), O 3 r 6(1) and (3), O 3 r 3(1) Bankruptcy Regulations (Cth) reg 4.02(1), sch 1 form 1

Commonwealth Bank of Australia v Horvath (Junior) [1999] FCA 143, (1999) 161 ALR 441 followed JOHN GERARD MORAN v LYDIARD FINANCIAL SERVICES PTY LTD (ACN 005 932 276) (PREVIOUSLY CUTHBERTS NOMINEES PTY LTD (ACN 005 932 276)) V 243 of 2005 GRAY J 20 JUNE 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 243 of 2005

BETWEEN: JOHN GERARD MORAN

APPLICANT

AND: LYDIARD FINANCIAL SERVICES PTY LTD

(ACN 005 932 276)

(previously CUTHBERTS NOMINEES PTY LTD

(ACN 005 932 276))

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 20 JUNE 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The order of Registrar Bardsley made on 12 April 2005 be set aside. 2. In lieu of that order, it be ordered that the bankruptcy notice dated 17 February 2005 be set aside. 3. The respondent pay the applicant's costs of the proceeding, fixed at $150. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.