Xenos v Oz-Graph Pty Ltd [2011] FMCA 72 (1 February 2011)

Federal Magistrates Court of Australia

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Xenos v Oz-Graph Pty Ltd [2011] FMCA 72 (1 February 2011)

Last Updated: 16 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

XENOS v OZ-GRAPH PTY LTD

[2011] FMCA 72

BANKRUPTCY – Application to set aside bankruptcy notice – where notice founded on default judgment – where applicant claimed that he had not signed the guarantee which was the subject of the earlier judgment and intends to lodge an appeal – whether sufficient grounds to set aside the bankruptcy notice.

Applicant:

TIM XENOS

Respondent:

OZ-GRAPH PTY LTD T/AS PRO-GRAFICA PRINTING (ACN 069 362 812)

File Number:

SYG 2401 of 2010

Judgment of:

Raphael FM

Hearing date:

1 February 2011

Date of Last Submission:

1 February 2011

Delivered at:

Sydney

Delivered on:

1 February 2011

REPRESENTATION

Solicitors for the Applicant:

Hancocks Solicitors

Solicitors for the Respondent:

Raj Lawyers

ORDERS

(1) Application dismissed.
(2) Applicant to pay the Respondent’s costs to be taxed, if not agreed, in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2401 of 2010

TIM XENOS

Applicant

And

OZ-GRAPH PTY LTD T/AS PRO-GRAFICA PRINTING (ACN 069 362 812)

Respondent

REASONS FOR JUDGMENT

1. There comes before me an application to set aside a bankruptcy notice, NN4129 of 2010. The bankruptcy notice is founded upon the judgment of the District Court, entered on 1 September 2010, in the sum of $64,220.17. It was apparently a default judgment. After the issue of the bankruptcy notice, the debtor, who appears to be obligated by virtue of some guarantee of a company with which he was associated, made an application to the District Court to set aside the judgment and provided the draft defence. I am informed that the matter came before Judge Rolfe in the District Court on 28 January and the application was dismissed. I have not had the advantage of seeing Judge Rolfe’s reasons.
2. Mr Hancock, who appears on behalf of the applicant, tells me that prior to the District Court hearing a document was provided, being an application for credit, and it would appear that the right of the respondent to recover monies from the debtor arose out of that document. Mr Hancock says that his client instructed him that he had not signed that document but I am unable to understand why that matter was not raised before Judge Rolfe. Mr Hancock asks that the Court extend time for compliance with the bankruptcy notice until after an appeal against the decision of Judge Rolfe is determined. Not surprisingly, no appeal has yet been lodged. There are some other rather complicated arguments about the debt itself which are raised in affidavits from Mr Xenos, the debtor, the latest being 1 February 2011. But these are not matters which go towards consideration of the validity of a bankruptcy notice.
3. In my view, I do not have enough information to satisfy me that the ordinary course of events in relation to the bankruptcy notice should not proceed. Time for compliance with the bankruptcy notice was extended by virtue of the application itself which was taken out on 5 November 2010. Having dismissed the application, I cannot give the applicant any further time but, clearly, if he makes payment of his obligations before any petition is issued, it is unlikely that he will be pursued into bankruptcy. If he does not do that and a petition is issued, it is open to him to argue that the petition should not be heard until after the appeal. His chances of success in that regard will depend very much on the expedition with which the appeal has been entered and the Court’s views as to its prospects.

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

Date: 10 February 2011