Brunninghausen, Max Bernard Jules v Glavanics, Michael [1998] FCA 230

Brunninghausen, Max Bernard Jules v Glavanics, Michael [1998] FCA 230

The bankruptcy notice was set aside because, having regard to the parties' communications about security, the creditor's failure to respond to the debtor's proposed security, the arguable and good faith appeal, and the evidence of the debtor's assets, the Court concluded that the bankruptcy notice was issued to put pressure on Mr Brunninghausen to make payment and was therefore an abuse of process.

Jurisdiction
Australia
Judgment Date
03 March 1998
Procedural Posture
Application to Set Aside a Bankruptcy Notice / Hearing and Judgment on Application
Outcome
Application granted; time for compliance extended to the date of judgment and bankruptcy notice set aside.
Legal Topics
['bankruptcy Notice' 'abuse of Process' 'extension of Time for Compliance' 'judgment Debt Pending Appeal' 'security for Judgment Debt']
['bankruptcy and Insolvency' 'civil Procedure'] ['bankruptcy Notice' 'abuse of Process' 'extension of Time for Compliance' 'judgment Debt Pending Appeal' 'security for Judgment Debt']

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Procedural Posture

Application to Set Aside a Bankruptcy Notice / Hearing and Judgment on Application

Legal Issues

  1. 1 ['Whether time for compliance with the bankruptcy notice should be extended after it had not been extended on 10 February 1998.' 'Whether the bankruptcy notice should be set aside as an abuse of process because it was issued to put pressure on the debtor to pay rather than to invoke bankruptcy jurisdiction in relation to insolvency.' "Alternatively, whether time for compliance should be extended until final disposition of the debtor's appeal to the Court of Appeal of New South Wales."]

Ratio Decidendi

The bankruptcy notice was set aside because, having regard to the parties' communications about security, the creditor's failure to respond to the debtor's proposed security, the arguable and good faith appeal, and the evidence of the debtor's assets, the Court concluded that the bankruptcy notice was issued to put pressure on Mr Brunninghausen to make payment and was therefore an abuse of process.

Court Disposition

Application granted; time for compliance extended to the date of judgment and bankruptcy notice set aside.

Orders

  • ['That time for compliance with the bankruptcy notice be extended with effect from 10 February 1998 up to an including today.' 'That the bankruptcy notice of 20 October 1997 number 2173 of 1997 be set aside.' "That the creditor pay the debtor's costs of this application."]