Re Devy, Andrew Laurence Ex Parte BBC Hardware Ltd (formerly known as Burns Philp Hardware Ltd) [1996] FCA 598

Re Devy, Andrew Laurence Ex Parte BBC Hardware Ltd (formerly known as Burns Philp Hardware Ltd) [1996] FCA 598

Although the solicitor's claim for costs was a claim for a liquidated sum, Ms Gurnsy had not delivered a bill in proper form and therefore had no right to sue at any relevant time. Her asserted debt could only become payable at an uncertain future time, depending on presentation and taxation of a bill or expiry of the time to request taxation. She therefore did not establish that she was a creditor with a liquidated debt payable immediately or at a certain future time under s 44(1) of the Bankruptcy Act 1966 (Cth).

Jurisdiction
Australia
Judgment Date
18 June 1996
Procedural Posture
Creditor's Petition in Bankruptcy / Hearing of Substituted Petitioning Creditor's Entitlement to Succeed on the Petition
Outcome
The creditor's petition was dismissed.
Legal Topics
["creditor's Petition" 'substituted Petitioning Creditor' "solicitor's Costs" 'liquidated Debt' 'debt Payable Immediately or at a Certain Future Time' 'bill of Costs']
['bankruptcy' 'legal Profession' 'costs'] ["creditor's Petition" 'substituted Petitioning Creditor' "solicitor's Costs" 'liquidated Debt' 'debt Payable Immediately or at a Certain Future Time' 'bill of Costs']

Case Brief

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Procedural Posture

Creditor's Petition in Bankruptcy / Hearing of Substituted Petitioning Creditor's Entitlement to Succeed on the Petition

Legal Issues

  1. 1 ['Whether Ms S. Gurnsy had shown that the debtor owed her a debt which was a liquidated sum and payable immediately or at a certain future time within s 44(1) of the Bankruptcy Act 1966 (Cth).' "Whether a solicitor who had not delivered a bill of costs in proper form could rely on unpaid professional fees and disbursements as the debt supporting a creditor's petition."]

Ratio Decidendi

Although the solicitor's claim for costs was a claim for a liquidated sum, Ms Gurnsy had not delivered a bill in proper form and therefore had no right to sue at any relevant time. Her asserted debt could only become payable at an uncertain future time, depending on presentation and taxation of a bill or expiry of the time to request taxation. She therefore did not establish that she was a creditor with a liquidated debt payable immediately or at a certain future time under s 44(1) of the Bankruptcy Act 1966 (Cth).

Court Disposition

The creditor's petition was dismissed.

Orders

  • ['The petition is dismissed.' 'Ms Gurnsy is to pay the costs of BBC Hardware Limited of 20 March and 18 April and a reasonable amount for the costs of submissions made as to costs.' "Ms Gurnsy is to pay the debtor's costs of 20 March and 18 April and the debtor's costs of the hearing yesterday and today."]