Lazar v Seccombe [2005] FCA 1652

Lazar v Seccombe [2005] FCA 1652

The application was dismissed because the applicant did not plainly establish that the bankruptcy notice had not been served in accordance with Regulation 16.01: it was left at an address the applicant had given in sworn evidence, he in fact received it and gave it to his solicitor, and the evidence about whether it was delivered in an envelope was incomplete, with Ms Neels not called. The abuse of process ground also failed because the consent orders made the obligation to pay the $200,000 judgment debt unconditional and not dependent on execution or delivery of the deed of release or tax invoice.

Jurisdiction
Australia
Judgment Date
16 November 2005
Procedural Posture
Application to Set Aside a Bankruptcy Notice / Federal Court Application Dismissed After Hearing
Outcome
Application dismissed.
Legal Topics
['service of Bankruptcy Notice' 'regulation 16.01 of the Bankruptcy Regulations 1996 (cth)' 'abuse of Process' 'consent Orders' 'costs']
['bankruptcy and Insolvency' 'civil Procedure'] ['service of Bankruptcy Notice' 'regulation 16.01 of the Bankruptcy Regulations 1996 (cth)' 'abuse of Process' 'consent Orders' 'costs']

Case Brief

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Procedural Posture

Application to Set Aside a Bankruptcy Notice / Federal Court Application Dismissed After Hearing

Legal Issues

  1. 1 ['Whether the bankruptcy notice was duly served as required by Regulation 16.01 of the Bankruptcy Regulations 1996 (Cth).' 'Whether issuing the bankruptcy notice was an abuse of process because deeds of release and a tax invoice contemplated by the consent orders had not been delivered.' 'Whether the obligation to pay the District Court consent judgment was conditional on execution and delivery of the deed of release or tax invoice.']

Ratio Decidendi

The application was dismissed because the applicant did not plainly establish that the bankruptcy notice had not been served in accordance with Regulation 16.01: it was left at an address the applicant had given in sworn evidence, he in fact received it and gave it to his solicitor, and the evidence about whether it was delivered in an envelope was incomplete, with Ms Neels not called. The abuse of process ground also failed because the consent orders made the obligation to pay the $200,000 judgment debt unconditional and not dependent on execution or delivery of the deed of release or tax invoice.

Court Disposition

Application dismissed.

Orders

  • ['The application be dismissed.' "In the event of a sequestration order being made on the application of the respondent to the present proceedings as petitioner to the bankruptcy petition (or by a substituted petitioner and creditor), then the applicant is to pay the respondent's costs of this application with the...