Cross v Taylor & Waverley Hill Pty Ltd [2010] FMCA 87 (2 February 2010)

Last Updated: 16 February 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CROSS v TAYLOR & WAVERLEY HILL PTY LTD

[2010] FMCA 87

BANKRUPTCY – Bankruptcy Notice – where creditor elected to accept funds as paying down a corporate debt – where creditor company had been deregistered but was reregistered prior to issue of bankruptcy notice.

Applicant:

BARRY PHILIP CROSS

Respondent:

GRAHAM TAYLOR & WAVERLEY HILL PTY LTD

File Number:

SYG 2945 of 2009

Judgment of:

Raphael FM

Hearing date:

2 February 2010

Date of Last Submission:

2 February 2010

Delivered at:

Sydney

Delivered on:

2 February 2010

REPRESENTATION

For the Applicant:

In Person

Solicitors for the Respondent:

Robson & Oliver

ORDERS

(1) Application dismissed.
(2) Applicant to pay the Respondents’ costs assessed in the amount of $1,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2945 of 2009

BARRY PHILIP CROSS

Applicant

And

GRAHAM TAYLOR & WAVERLEY HILL PTY LTD

Respondent

REASONS FOR JUDGMENT

1. In this matter Dr Cross, the debtor, seeks to have set aside a bankruptcy notice numbered NN4921/09 in which an amount of $25,550.40 was claimed against him, being the balance of moneys purportedly owed by him under various costs assessments. A complication in the matter was that money was owed to the respondents both by Dr Cross and by a company controlled by him. What occurred was that funds to the value of the amount owed personally by Dr Cross were paid to the respondents but were paid in such a manner that the respondents were entitled to make an election as to whether they were being paid by Dr Cross or by his company.
2. For reasons unknown, and to my mind irrelevant, Dr Cross sent the money not to the respondents or their solicitors but to the Australian Taxation Office who returned it to the solicitors. The funds were in the form of bank cheques so there was no way of identifying them as Dr Cross’ moneys as opposed to those of his company. In those circumstances, upon receipt of the funds from the taxation commissioner, the respondents elected to accept the money first in payment of the company’s debt and second in part payment of Dr Cross’s personal debt. Dr Cross raised the interesting and important point that Waverley Hill Proprietary Limited, one of the respondents, had become deregistered in 2008. The evidence establishes this is the case but I am advised that it was later reregistered prior to the issue of the bankruptcy notice. As the company had been reregistered by the time the bankruptcy notice was issued and was not deregistered at the time it made the election I am satisfied that it had the power to request that the official receiver issue the bankruptcy notice and that there was no invalidation of the election.
3. In those circumstances, which have been explained to Dr Cross, he has consented to this application being dismissed and I make that order together with an order that he pay the respondent’s costs which I assess in the sum of $1,500.00.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 February 2010