HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

FEDERAL COURT OF AUSTRALIA

HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 Citation: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449

Appeal from: Application for an extension of time: Deputy Commissioner of Taxation v HWY Rent Pty Ltd (NSD 892 of 2012)

Parties: HWY RENT PTY LTD (ACN 148 031 270), RUSSELL ALAN JARVIE and PATRICIA ANNE JARVIE v HWY RENTALS PTY LTD (IN LIQUIDATION) (ACN 109 796 901) and MICHAEL JOHN MORRIS SMITH

File number: NSD 2326 of 2013

Parties: MICHAEL JOHN MORRIS SMITH v RUSSELL ALAN JARVIE

File number: NSD 216 of 2014

Judge: PERRY J

Date of judgment: 8 May 2014

Catchwords: BANKRUPTCY – Bankruptcy notice set aside – Where notice issued as part of systematic abuse of process – Where failure to attach a copy of judgment and orders – Where notice founded upon fraudulently obtained default judgment subsequently set aside – Where service of bankruptcy notice invalid COSTS – Whether Court ought to exercise discretion to award indemnity costs – Where no genuine intent to prosecute proceedings – Where proceedings conducted for ulterior and improper purposes – Where party filed falsified documents PRACTICE AND PROCEDURE – Application for vexatious proceedings order pursuant to s 37AO of the Federal Court of Australia Act 1976 (Cth) – Meaning of the term "proceeding" – Meaning of the term "institute" – Whether a request to issue a bankruptcy notice under s 41(1) of the Bankruptcy Act 1966 (Cth) constitutes the institution of proceedings for the purpose of s 37AO of the FCA Act – Where multiple proceedings conducted vexatiously and found to constitute an abuse of the Court's processes – Where conduct designed to harass and intimidate another party – Whether vexatious proceedings instituted "frequently" – Whether an appropriate opportunity to be heard afforded as required by s 37AO(4) of the Act