In the Matter of Marcus Andrew Rose (also known as Marcus Andre Charles Rose) & Anor; Pyramid Building Society (in liq) v Rose, Marcus Andrew & Anor [1997] FCA 1562

In the Matter of Marcus Andrew Rose (also known as Marcus Andre Charles Rose) & Anor; Pyramid Building Society (in liq) v Rose, Marcus Andrew & Anor [1997] FCA 1562

The creditor's petition was dismissed because, by the date of the alleged act of bankruptcy, the varied Supreme Court orders had replaced the original costs order on which the taxation depended, and there had been no taxation of the costs payable by the debtors under the varied orders. The bankruptcy notice therefore was not supported by a final judgment or order for $179,648.25 against the debtors and failed to meet an essential requirement of the Bankruptcy Act 1966. Alternatively, treating the taxation as relating to separate judgments would impermissibly found the bankruptcy notice on more than one judgment.

Jurisdiction
Australia
Judgment Date
08 December 1997
Procedural Posture
Creditor's Petition Under the Bankruptcy Act 1966 / Hearing of Creditor's Petition
Outcome
Creditor's petition dismissed.
Legal Topics
["creditor's Petition" 'bankruptcy Notice' 'taxation of Costs' 'final Judgment or Order' 'costs Orders']
['bankruptcy and Insolvency' 'civil Procedure'] ["creditor's Petition" 'bankruptcy Notice' 'taxation of Costs' 'final Judgment or Order' 'costs Orders']

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Procedural Posture

Creditor's Petition Under the Bankruptcy Act 1966 / Hearing of Creditor's Petition

Legal Issues

  1. 1 ["Whether the bankruptcy notice and creditor's petition could rely on taxed costs of $179,648.25 after the Supreme Court costs orders had been varied." 'Whether there was a final judgment or order for the amount claimed against the debtors at the date of the alleged act of bankruptcy.' 'Whether a bankruptcy notice can be founded on two judgments rather than one judgment.']

Ratio Decidendi

The creditor's petition was dismissed because, by the date of the alleged act of bankruptcy, the varied Supreme Court orders had replaced the original costs order on which the taxation depended, and there had been no taxation of the costs payable by the debtors under the varied orders. The bankruptcy notice therefore was not supported by a final judgment or order for $179,648.25 against the debtors and failed to meet an essential requirement of the Bankruptcy Act 1966. Alternatively, treating the taxation as relating to separate judgments would impermissibly found the bankruptcy notice on more than one judgment.

Court Disposition

Creditor's petition dismissed.

Orders

  • ["The creditor's petition dated 23 September 1997 be dismissed."]