Re Ross Studwell Ex Parte: Australian Fibreglass Pty Limited [1980] FCA 59 (27 May 1980)

FEDERAL COURT OF AUSTRALIA

Re: ROSS STUDWELL
Ex parte: AUSTRALIAN FIBREGLASS PTY. LIMITED
No. B5300 of 1979
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Lockhart J.

CATCHWORDS

Bankruptcy - bankruptcy notice - application for extension of time with requirements - exercise of discretion.

HEARING

SYDNEY
27:5:1980

ORDER

1. Leave to the applicant to amend the application by seeking orders that bankruptcy notice B5300 of 1979 be set aside is refused.

2. The application of 19 October 1979 is dismissed.

3. The order previously made extending time for compliance with the requirements of the bankruptcy notice until further order is terminated.

4. The applicant be released from his undertaking to the court by his counsel that he would not, until the determination of the application or further order, dispose of deal with, mortgage, pledge or encumber any of his assets otherwise than in the ordinary course of business or for the purpose of meeting ordinary living expenses or legal costs.

5. The applicant pay the respondent's costs of the applications including reserved costs.

DECISION

This is an application by Ross Studwell ("the applicant") for an order that time for compliance with bankruptcy notice No. B5300 of 1979 be extended for such time as may be necessary for the completion of proceedings to set aside the judgment on which the bankruptcy notice is based.

Judgment was obtained by Australian Fibreglass Pty. Limited ("the respondent") against the applicant in the Supreme Court of New South Wales on 30 July 1979 in the sum of $44,000.00.

In the proceedings in the Supreme Court of New South Wales the respondent claimed that the applicant and others, including one Kevin Alan Studwell, in consideration of the respondent extending credit to Studwell Pty. Limited ("the company"), agreed in writing on 13 September 1977 that in the event of the non-payment of certain bills of exchange on the due dates by the company, they would furnish to the respondent bank cheques for the amounts referred to in each of the bills on the dates referred to therein; that some of the bills have been dishonoured; and that the applicant has failed to furnish to the respondent the bank cheques. Hence the respondent claimed from the applicant the sum of $44,000.00 being the amounts payable under the bills.

In affidavits filed in the proceedings before this Court, the applicant asserts that he has never been served personally with the statement of claim in the Supreme Court proceedings.

The facts and issues in the application brought by Kevin Alan Studwell for an order extending time for compliance with the requirements of a bankruptcy notice served on him are the same as in the present application except for the assertion by the applicant that he was not served with the statement of claim and the fact that the judgment signed against the applicant was not based on a cause of action relating to a guarantee. My conclusions in this matter are the same in all relevant respects as they were in the case of Kevin Alan Studwell.

I will not repeat what I said in my reasons for judgment given today on the application of Kevin Alan Studwell. They should be read together with these reasons.

It is plain that there is no answer to the respondent's claim against the applicant. Even if the cross-claims asserted by the company against the respondent were to succeed there is no answer to the respondent's contention that the applicant cannot escape his liability to the respondent in the sum of $44,000.00.

The assertion by the applicant that he was not served personally with the statement of claim provides no reason for the success of this application.

As in the case of Kevin Alan Studwell, application was made by the applicant for leave to amend the application to seek the same relief as was sought in the case of Kevin Alan Studwell. Its fate is the same.

I make the following orders:-

1. I refuse to grant leave to the applicant to amend the application by seeking orders that bankruptcy notice B5300 of 1979 be set aside in the exercise of the court's inherent jurisdiction;

2. I dismiss the application of 19 October 1979;

3. I terminate the order previously made extending time for compliance with the requirements of the bankruptcy notice until further order;

4. I release the applicant from his undertaking to the Court by his counsel that he would not, until the determination of the application or further order, dispose of, deal with, mortgage, pledge or encumber any of his assets otherwise than in the ordinary course of business or for the purpose of meeting ordinary living expenses or legal costs;

5. I order the applicant to pay the respondent's costs of the applications before the Court including reserved costs.