Boglari v Coadys (A Firm) (Receiver and Manager Appointed) [2009] FCA 1398

FEDERAL COURT OF AUSTRALIA

Boglari v Coadys (A Firm) (Receiver and Manager Appointed) [2009] FCA 1398 BANKRUPTCY – bankruptcy notice – setting aside – bankruptcy notice based on judgment of County Court – judgment given after striking out defence for failure to comply with rules of court – federal magistrate refused to exercise discretion to go behind judgment – whether federal magistrate's exercise of discretion miscarried – whether substantial reason to question whether judgment in respect of an actual debt – whether material indicating real dispute between appellants and their former solicitors about whether appellants were liable for costs beyond what they had already paid – whether County Court should have taken the view that strict compliance with rules by an unrepresented litigant was required

PRACTICE AND PROCEDURE – whether exercise of discretion miscarried because the correct principles were not applied Legal Profession Act 2004 (Vic) s 3.4.19 Boglari & Anor v Coadys (a firm) [2008] FMCA 1277 cited Corney v Brien (1951) 84 CLR 343 cited House v The King (1936) 55 CLR 499 followed Joossé v Commissioner of Taxation [2004] FCAFC 245 (2004) 137 FCR 576 followed Neil v Nott (1994) 121 ALR 148 applied Wolff v Donovan (1991) 29 FCR 480 cited

SANDOR BOGLARI and SUSANNA BOGLARI v COADYS (A FIRM) (RECEIVER AND MANAGER APPOINTED)

VID 759 of 2008

GRAY J

27 NOVEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 759 of 2008

general division

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SANDOR BOGLARI

First Appellant

SUSANNA BOGLARI

Second Appellant

AND: COADYS (A FIRM) (RECEIVER AND MANAGER APPOINTED)

Respondent

JUDGE: GRAY J

DATE OF ORDER: 27 NOVEMBER 2009

WHERE MADE: MELBOURNE