Coleman v Veale [2023] FCA 1023

Coleman v Veale [2023] FCA 1023

The application was within time because it was lodged electronically on 12 April 2023 before 4:30 pm and was therefore taken by r 2.25(3) to have been filed that day, notwithstanding later acceptance. The failure to deduct the $3,700 costs order did not justify setting aside the notice because the notice clearly stated what was claimed, could not realistically have misled the applicant, and the amount in fact due for the purpose of the notice was referable to the identified judgment debt rather than a general set-off of all obligations. However, the notice did not comply with s 12(2)(a) or (b) of the Bankruptcy Regulations 2021 (Cth): it stated the wrong date for the RBA exchange rate...

Jurisdiction
Australia
Judgment Date
29 August 2023
Procedural Posture
Application Under S 30 of the Bankruptcy Act 1966 (cth) to Set Aside a Bankruptcy Notice / Final Determination of the Application
Outcome
Bankruptcy notice set aside; parties to be heard as to costs.
Legal Topics
['bankruptcy Notice' 'misstatement of Amount Due' 'foreign Currency Judgment Conversion' 'federal Court Electronic Filing' 'jurisdiction in Bankruptcy']
['bankruptcy and Insolvency' 'practice and Procedure'] ['bankruptcy Notice' 'misstatement of Amount Due' 'foreign Currency Judgment Conversion' 'federal Court Electronic Filing' 'jurisdiction in Bankruptcy']

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Procedural Posture

Application Under S 30 of the Bankruptcy Act 1966 (cth) to Set Aside a Bankruptcy Notice / Final Determination of the Application

Legal Issues

  1. 1 ["Whether the Court's bankruptcy jurisdiction was properly invoked where the application was lodged electronically before, but accepted for filing after, the expiry of the period in s 41(6A) of the Bankruptcy Act 1966 (Cth)." 'Whether failure to note and allow for a $3,700 costs order payable by the respondent to the applicant vitiated the bankruptcy notice as an overstatement of the amount due.' 'Whether the bankruptcy notice complied with s 12 of the Bankruptcy Regulations 2021 (Cth) in stating the Australian dollar equivalent of a judgment expressed in US dollars.' 'Whether any non-compliance with s 12 of the Bankruptcy Regulations 2021 (Cth) was a merely formal defect saved by s 306(1) of the Bankruptcy Act 1966 (Cth).']

Ratio Decidendi

The application was within time because it was lodged electronically on 12 April 2023 before 4:30 pm and was therefore taken by r 2.25(3) to have been filed that day, notwithstanding later acceptance. The failure to deduct the $3,700 costs order did not justify setting aside the notice because the notice clearly stated what was claimed, could not realistically have misled the applicant, and the amount in fact due for the purpose of the notice was referable to the identified judgment debt rather than a general set-off of all obligations. However, the notice did not comply with s 12(2)(a) or (b) of the Bankruptcy Regulations 2021 (Cth): it stated the wrong date for the RBA exchange rate...

Court Disposition

Bankruptcy notice set aside; parties to be heard as to costs.

Orders

  • ['Pursuant to s 30 of the Bankruptcy Act 1966 (Cth), bankruptcy notice BN 259365 issued on 23 March 2023 be set aside.']