Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578

FEDERAL COURT OF AUSTRALIA

Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578 File number: WAD 492 of 2016

Judge: BARKER J

Date of judgment: 23 December 2016

Catchwords: BANKRUPTCY – creditor's petition – where creditor's petition based on failure to comply with bankruptcy notice requiring payment of judgment debt – whether court of bankruptcy should "go behind" judgment on which judgment debt based – whether respondent debtor had counter-claim equal to or exceeding amount of judgment debt for purposes of s 40(1)(g) of Bankruptcy Act 1966 (Cth) – whether creditor's petition abuse of process – whether sequestration order would deprive respondent debtor of property otherwise than on "just terms" contrary to s 51(xxxi) of Constitution – whether Court satisfied that respondent debtor able to pay his debts for purposes of s 52(2) of Bankruptcy Act 1966 (Cth) – whether respondent debtor entitled to account under s 30(2) of Bankruptcy Act 1966 (Cth) PRACTICE AND PROCEDURE – service – whether bankruptcy notice and creditor's petition served – where notice of appearance entered by respondent debtor PRACTICE AND PROCEDURE – application for trial by jury – whether Court should exercise discretion to direct trial of question of fact before a jury under s 30(3) of Bankruptcy Act 1966 (Cth) – whether right to trial by jury under s 116 of Constitution – whether right to trial by jury under s 80 of Constitution – application dismissed PRACTICE AND PROCEDURE – application for adjournment of hearing – whether adjournment should be granted for respondent debtor to obtain legal representation – whether adjournment should be granted for service of notices under s 78B of Judiciary Act 1903 (Cth) – where adjournment previously granted – where respondent debtor previously expressed desire to appear as self-represented party/advocate – application dismissed Legislation: Constitution ss 51(xxxi), 80, 116 Bankruptcy Act 1966 (Cth) ss 30(2), 30(3), 31(1), 40(1), 40(1)(g), 41, 43, 43(1), 43(2), 44, 44(1), 44(1)(a), 44(2), 44(3), 47, 47(1), 52, 52(1), 52(1)(b), 52(1A), 52(2), 52(3), 60(3), 74(5), 86(1), 149(1), 153A(1), 153B, 156A, 178 Federal Court of Australia Act 1976 (Cth) ss 37M, 40 Judiciary Act 1903 (Cth) s 78B Federal Court (Bankruptcy) Rules 2016 (Cth) RR 1.04, 4.04, 4.04(1)(a), 4.04(1)(b). 4.05, 4.06, Pt 4 Federal Court Rules 2011 (Cth) RR 10.11, 10.12