Australia & New Zealand Banking Group Ltd v Hubner [1999] FCA 1345

Australia & New Zealand Banking Group Ltd v Hubner [1999] FCA 1345

The applications for adjournment and rescission were dismissed because s 37(1) of the Bankruptcy Act 1966 did not empower the Court to rescind Full Court orders made under the Federal Court of Australia Act 1976, it would be erroneous as a matter of discretion to rescind Dowsett J's orders after they had been upheld by the Full Court, and the High Court removal motion and asserted constitutional matters did not affect the validity of the unappealed interlocutory costs orders on which the bankruptcy notices and creditor's petition were based.

Jurisdiction
Australia
Judgment Date
20 September 1999
Procedural Posture
Creditor's Petition and Related Notices of Motion in Bankruptcy Proceedings / Application for Adjournment of Creditor's Petition, Motions Seeking Rescission of Earlier Federal Court Orders, and Application for Leave to Amend Creditor's Petition
Outcome
Application for adjournment and notices of motion dismissed with costs; leave granted to amend the creditor's petition.
Legal Topics
['rescission of Orders Under S 37(1) Bankruptcy Act 1966' 'adjournment Pending High Court Removal Application' 'section 78 B Judiciary Act 1903 Notices' 'interlocutory Costs Orders as Foundation for Bankruptcy Notices' "amendment of Creditor's Petition"]
['practice and Procedure' 'bankruptcy' 'costs' 'constitutional Law'] ['rescission of Orders Under S 37(1) Bankruptcy Act 1966' 'adjournment Pending High Court Removal Application' 'section 78 B Judiciary Act 1903 Notices' 'interlocutory Costs Orders as Foundation for Bankruptcy Notices' "amendment of Creditor's Petition"]

Case Brief

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Procedural Posture

Creditor's Petition and Related Notices of Motion in Bankruptcy Proceedings / Application for Adjournment of Creditor's Petition, Motions Seeking Rescission of Earlier Federal Court Orders, and Application for Leave to Amend Creditor's Petition

Legal Issues

  1. 1 ['Whether s 37(1) of the Bankruptcy Act 1966 empowered the Federal Court to rescind orders made by the Full Court of the Federal Court on appeal.' 'Whether the Court should in its discretion rescind orders of Dowsett J refusing to set aside bankruptcy notices after those orders had been upheld by the Full Court.' "Whether the creditor's petition should be adjourned because a notice of motion had been filed in the High Court seeking removal of part of the proceedings under s 40 of the Judiciary Act 1903." "Whether the creditor's petition involved a matter arising under the Constitution or involving its interpretation for the purposes of s 78B(1) of the Judiciary Act 1903." 'Whether unappealed interlocutory costs orders remained valid independently of any challenge to the substantive default judgment.' "Whether leave should be granted to amend the creditor's petition to remove reliance on further acts of bankruptcy."]

Ratio Decidendi

The applications for adjournment and rescission were dismissed because s 37(1) of the Bankruptcy Act 1966 did not empower the Court to rescind Full Court orders made under the Federal Court of Australia Act 1976, it would be erroneous as a matter of discretion to rescind Dowsett J's orders after they had been upheld by the Full Court, and the High Court removal motion and asserted constitutional matters did not affect the validity of the unappealed interlocutory costs orders on which the bankruptcy notices and creditor's petition were based.

Court Disposition

Application for adjournment and notices of motion dismissed with costs; leave granted to amend the creditor's petition.

Orders

  • ['The application for adjournment of proceedings QG 7483 of 1998 be dismissed with costs, including reserved costs, to be taxed if not agreed, such costs to stand as costs of the petitioning creditor should a sequestration order be made on the petition brought by the petitioning creditor.' 'The notice of motion...