Batterham v Makeig [2010] FCA 50

Batterham v Makeig [2010] FCA 50

The affidavit accompanying the application failed to state, as required by rule 3.02, the date when the bankruptcy notice was served. Following O'Meara v Deputy Commissioner of Taxation, this omission renders the application incompetent. Accordingly, the application to set aside the bankruptcy notice is dismissed.

Parties
Applicant: Brian Joseph Batterham; Respondent: Peter John Makeig
Jurisdiction
Australia
Judgment Date
03 February 2010
Procedural Posture
Application to Set Aside Bankruptcy Notice / Reasons for Judgment and Final Orders
Outcome
Application dismissed; no order as to costs.
Legal Topics
Bankruptcy Notice, Extension of Time, Affidavit Requirements
Bankruptcy Bankruptcy Notice Extension of Time Affidavit Requirements

Case Brief

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Parties

Brian Joseph Batterham

Applicant

Peter John Makeig

Respondent

Procedural Posture

Application to Set Aside Bankruptcy Notice / Reasons for Judgment and Final Orders

Legal Issues

  1. 1 Whether the application to set aside the bankruptcy notice complied with rule 3.02 of the Federal Court (Bankruptcy) Rules 2005
  2. 2 Whether the application was made within the time required under s 41 of the Bankruptcy Act 1966 (Cth)
  3. 3 Whether an order extending time for compliance with the bankruptcy notice should be made

Ratio Decidendi

The affidavit accompanying the application failed to state, as required by rule 3.02, the date when the bankruptcy notice was served. Following O'Meara v Deputy Commissioner of Taxation, this omission renders the application incompetent. Accordingly, the application to set aside the bankruptcy notice is dismissed.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application filed on 14 December 2009 be dismissed.
  • There be no order as to costs.