Franks v Warringah Council, in the matter of Franks [2003] FCA 1047

Franks v Warringah Council, in the matter of Franks [2003] FCA 1047

The bankruptcy notices must be set aside because they are not founded on a final judgment or final order as required by s 40(1)(g) of the Bankruptcy Act; an assessed but unfiled costs certificate does not suffice, and neither do unquantified costs orders alone.

Jurisdiction
Australia
Judgment Date
02 October 2003
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notices
Outcome
bankruptcy notices set aside
Legal Topics
['final Judgment or Order Under Bankruptcy Act' 'assessment of Legal Costs' 'validity of Bankruptcy Notices' 'enforcement Procedure of Assessed Costs']
['bankruptcy'] ['final Judgment or Order Under Bankruptcy Act' 'assessment of Legal Costs' 'validity of Bankruptcy Notices' 'enforcement Procedure of Assessed Costs']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notices

Legal Issues

  1. 1 ['Whether bankruptcy notices are defective for lack of a final judgment or order as required by Bankruptcy Act 1966 (Cth) s 40(1)(g)' 'Whether assessed but unfiled costs certificates constitute final judgment or order' 'Whether the existence of two final judgments in respect of the same debt is legally permissible']

Ratio Decidendi

The bankruptcy notices must be set aside because they are not founded on a final judgment or final order as required by s 40(1)(g) of the Bankruptcy Act; an assessed but unfiled costs certificate does not suffice, and neither do unquantified costs orders alone.

Court Disposition

bankruptcy notices set aside

Orders

  • ['The bankruptcy notice be set aside.' "The respondent pay the applicant's costs"]