Federal Court of Australia
Federal Court of Australia
Smith v Achieve Homes Pty Ltd [2024] FCA 327 File number(s): ACD 3 of 2024
Judgment of: THAWLEY J
Date of judgment: 4 April 2024
Catchwords: PRACTICE AND PROCEDURE – review of Registrar's decision under s 35A(5) of the Federal Court of Australia Act 1976 (Cth) – Registrar dismissed proceeding, in part, due to non-appearance of applicant – applicant has now appeared – hearing de novo conducted BANKRUPTCY – application to set aside bankruptcy notice under s 40(1)(g) Bankruptcy Act 1966 (Cth) – whether adjudication decision under Building and Construction Industry Security of Payment Act 1999 (NSW) is a proceeding for the purposes of s 40(1)(g) – whether applicant could set up a counter-claim, set-off or cross demand in the adjudication proceeding – applicant could not set up a cross-claim, set-off or cross demand – bankruptcy notice set aside
Legislation: Bankruptcy Act 1966 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court (Bankruptcy) Rules 2016 (Cth) Building and Construction Industry Security of Payment Act 1999 (NSW) Civil Procedure Act 2005 (NSW) Building and Construction Industry Security of Payment Regulation 2020 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases cited: Axarlis v Pets Paradise Franchising (SA) Pty Ltd [2010] FCA 319; 183 FCR 521 Bobos v Deputy Commissioner of Taxation [2019] FCA 1910 Chen v Bannerman [2001] FCA 160 Dekkan v Macquarie Leasing Pty Ltd [2008] FCA 1235 Demir Pty Ltd v Graf Plumbing Pty Ltd [2004] NSWSC 553 Glew v Harrowell [2003] FCA 373; 198 ALR 331 Grave v Blazevich Holdings Pty Ltd [2010] FMCA 386 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; 261 CLR 1 Brodyn Pty Ltd t/as Time Cost and Quality v Phillip Davenport & Ors [2003] NSWSC 1019 Re A Debtor (1914) 3 KB 726 Re Brink [1980] FCA 78; 44 FLR 135 Re Dalco [1986] FCA 357; 67 ALR 605 Re Jocumsen (1929) 1 ABC 82 Re Stokvis (1934) 7 ABC 53 Re Vicini; Ex parte EA Sealey & Co [1982] FCA 156; 64 FLR 323 Re Willats [1991] FCA 541; 31 FCR 206 Wren v Mahony [1972] HCA 47; 126 CLR 212
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