Burhala v Commissioner of Taxation [2020] FCA 1854

Federal Court of Australia

Burhala v Commissioner of Taxation [2020] FCA 1854 File number: VID 1390 of 2019

Judgment of: MOSHINSKY J

Date of judgment: 23 December 2020

Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal or strike out of whole statement of claim – where the applicant was a bankrupt residing in Romania – where the respondent was a creditor of the bankrupt – where the applicant alleged that an earlier interlocutory judgment of the Court should be set aside on the basis that it had been obtained by fraud or because there were exceptional circumstances – where the applicant alleged that the respondent had enforced or was seeking to enforce a remedy against the person or property of the bankrupt in respect of a provable debt in contravention of s 58(3)(a) of the Bankruptcy Act 1966 (Cth) – whether the claims should be summarily dismissed or struck out BANKRUPTCY – where the applicant was a bankrupt residing in Romania – where the respondent was a creditor of the bankrupt – where the applicant alleged that the respondent had enforced or was seeking to enforce a remedy against the person or property of the bankrupt in respect of a provable debt in contravention of s 58(3)(a) of the Bankruptcy Act 1966 (Cth) – whether the bankrupt had standing to bring the claim

Legislation: Bankruptcy Act 1966 (Cth), s 58 Federal Court of Australia Act 1976 (Cth), s 31A Federal Court Rules 2011 (Cth), rr 16.21, 26.01, 39.05

Cases cited: Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 Commissioner of Taxation v Yeo (Trustee) [2018] FCA 635 Commissioner of Taxation v Yeo (Trustee) (No 2) [2019] FCA 1188 Coumanios v Giunti [2017] FCA 678 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Fraser v Federal Commissioner of Taxation (1996) 69 FCR 99 Kattirtzis v Zaravinos [2001] FCA 1158 McGuirk v The University of New South Wales [2009] NSWSC 1424 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (2017) 123 ACSR 223 Shelton v National Roads and Motorists' Association Ltd (2004) 51 ACSR 278 Spencer v The Commonwealth of Australia (2010) 241 CLR 118 Talacko v Bennett (2017) 260 CLR 124 Trkulja v Google LLC (2018) 263 CLR 149