Killen v Hamilton; in the Matter of Bryce Geoffrey Lyle Killen [2008] FCA 1872

FEDERAL COURT OF AUSTRALIA

Killen v Hamilton; in the Matter of Bryce Geoffrey Lyle Killen [2008] FCA 1872

BANKRUPTCY – application to set aside Bankruptcy Notice on ground that debtor has a counter-claim, set-off or cross demand equal to or greater than amount in Bankruptcy Notice – no evidence of such a claim or right available to debtor – application refused Bankruptcy Act 1966 (Cth), s 40(1)(g), s41(7) Legal Profession Act 2004 (NSW)

Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331 applied IN THE MATTER OF BRYCE GEOFFREY LYLE KILLEN; BRYCE GEOFFREY LYLE KILLEN v WILLIAM JAMES HAMILTON

NSD 1430 of 2008

FOSTER J

9 DECEMBER 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1430 of 2008

IN THE MATTER OF BRYCE GEOFFREY LYLE KILLEN BETWEEN: BRYCE GEOFFREY LYLE KILLEN

Applicant

AND: WILLIAM JAMES HAMILTON

Respondent

JUDGE: FOSTER J

DATE OF ORDER: 9 DECEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an adjournment be refused. 2. The Application to set aside Bankruptcy Notice No NN2786/08 dated 28 July 2008 be dismissed. 3. The applicant pay the respondent's costs of and incidental to this Application, including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1430 of 2008

IN THE MATTER OF BRYCE GEOFFREY LYLE KILLEN BETWEEN: BRYCE GEOFFREY LYLE KILLEN

Applicant

AND: WILLIAM JAMES HAMILTON

Respondent

JUDGE: FOSTER J

DATE: 9 DECEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 I have before me an Application to set aside a Bankruptcy Notice. The Application was filed on 11 September 2008. The Bankruptcy Notice (No NN2786/08) is dated 28 July 2008 and was served upon the applicant on 21 August 2008. The Application has been before a Registrar of this Court on three separate occasions beginning in late September 2008. 2 The Application came before me for the first time on 19 November 2008 on which occasion I fixed the matter for hearing today and made directions designed to have the matter ready for hearing today. When the matter was called on before me on 19 November 2008 I informed the applicant that it would be in his best interests to attempt to secure legal representation for the matter generally and, in particular, for the hearing. I did so because I was concerned that the amount claimed in the Bankruptcy Notice was a relatively small sum of money and did not seem to justify the expense that had already been incurred and was likely to be incurred in respect of a contest which, as matters seemed to me then, would probably not be able to be litigated in the present Application. 3 When the matter was called on before me this morning, the applicant informed me that he wished to apply for an adjournment of the hearing of the Application because he was attempting to obtain legal representation. In the course of submissions made by the applicant in support of his application for an adjournment, he informed me from the Bar table that he has taken his case (and I will call it "his case" for the time being without expanding upon just what this case might be) to about nine litigation funders and to three firms of solicitors over a period of time, commencing no later than February 2008. 4 Not one of those litigation funders and none of the law firms was prepared to take on his case. 5 The applicant informed me from the Bar table that Mr Morahan of Counsel had looked at his case and had indicated to him as recently as last Thursday that his case was a good case. Mr Morahan does not appear for the applicant today and no other lawyer has been retained to appear on behalf of the applicant today. The applicant comes to Court to argue the matter on his own behalf. 6 It seems to me that the applicant has had ample opportunity to organise legal representation for this hearing and has either chosen not to do so or has been unable to do so. In those circumstances, bearing in mind the nature of the Application and the number of occasions it has been before the Court, and, in particular, bearing in mind the fact that, despite all of the applicant's efforts to date, he has not secured legal representation, it seems to me that there is no point adjourning the matter and that the matter should proceed today. The respondent is entitled to have the Application heard without further delay. Accordingly, I refuse the applicant's application for an adjournment. 7 As mentioned in [1] above, by Application filed on 11 September 2008 the applicant applies to set aside Bankruptcy Notice No NN2786/08. The amount referred to in the Bankruptcy Notice is $4,794.75, being the amount of a judgment obtained by the respondent to the current application in the Common Law Division of the Supreme Court of New South Wales on 27 June 2008. I will say a little more about the subject matter of that judgment later in these Reasons. 8 In the affidavit sworn by the applicant on 11 September 2008 and filed in support of his Application, the sole ground relied upon by the applicant for setting aside the Bankruptcy Notice was that he had a "counter-claim, set off or cross demand equal to or exceeding the amount in the Bankruptcy Notice" which he could not have set up in the original proceedings. The "original proceedings" in the present case are the Common Law proceedings in the Supreme Court of New South Wales in which the judgment for $4,794.75 was obtained (see Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331 at [3] (p 332)). 9 In handwriting, in par 2 of the applicant's affidavit, the applicant set out the following particulars of that ground: Pinata Pty Ltd paid William James Hamilton an amount of $28000 for conducting its Administration and amount of over $25000 in 1996 for a progress payment to him as a Joint Receiver of the Pinata Pty Ltd and Partners Partnership under a Deed of Dissolution and Appointment of Receivers in which William James Hamilton should be disentitled to receive no remuneration because of his acts of wilful neglect and wilful default under Ch 6.3 of the Deed of Dissolution and Appointment of Receivers.