Boylan v Farthing [1999] FCA 267

Boylan v Farthing [1999] FCA 267

The certificate of judgment lodged in support of the bankruptcy notice was sufficient under the Bankruptcy Rules, as it met the necessary formal requirements and was duly issued by a Deputy Registrar. The inclusion of ‘costs to be taxed’ did not render the bankruptcy notice invalid where no quantified sum for costs was claimed. Any irregularities did not mislead the debtor or cause injustice. The bankruptcy notice accurately reflected the sums due, and no compelling basis existed for the court to go behind the judgment following a full trial and appeal. The appellant did not have a counter-claim, set-off or cross demand of the kind that would defeat the bankruptcy notice.

Parties
Appellant: Fred Boylan; Respondent: Stephen Farthing; Respondent: Alegna Pty Ltd (ACN 008 286 306)
Jurisdiction
Australia
Judgment Date
23 March 1999
Procedural Posture
Bankruptcy Appeal / Appellate Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
Bankruptcy Notice Validity, Certificate of Judgment, Costs, Counter Claim, Set Off or Cross Demand, Going Behind the Judgment, Supreme Court Rules 1987 (sa) R 101.02(1), District Court Act 1991 (sa) S 42
Bankruptcy Bankruptcy Notice Validity Certificate of Judgment Costs Counter Claim, Set Off or Cross Demand Going Behind the Judgment Supreme Court Rules 1987 (sa) R 101.02(1) District Court Act 1991 (sa) S 42

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Parties

Fred Boylan

Appellant

Stephen Farthing

Respondent

Alegna Pty Ltd (ACN 008 286 306)

Respondent

Procedural Posture

Bankruptcy Appeal / Appellate Judgment

Legal Issues

  1. 1 Whether the certificate of judgment filed satisfied the requirements for a bankruptcy notice under the Bankruptcy Rules
  2. 2 Whether inclusion of ‘costs to be taxed’ in the certificate rendered the bankruptcy notice a nullity
  3. 3 Whether the bankruptcy notice was misleading as to sums due

Ratio Decidendi

The certificate of judgment lodged in support of the bankruptcy notice was sufficient under the Bankruptcy Rules, as it met the necessary formal requirements and was duly issued by a Deputy Registrar. The inclusion of ‘costs to be taxed’ did not render the bankruptcy notice invalid where no quantified sum for costs was claimed. Any irregularities did not mislead the debtor or cause injustice. The bankruptcy notice accurately reflected the sums due, and no compelling basis existed for the court to go behind the judgment following a full trial and appeal. The appellant did not have a counter-claim, set-off or cross demand of the kind that would defeat the bankruptcy notice.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal be dismissed with costs.