Andrew O’Brien appeared for the respondent, instructed by RBG Lawyers.
The judgment concerned an application to review a Federal Court registrar’s decision dismissing the applicant’s application to set aside a bankruptcy noticed issued by the Queensland Law Society. However, the application was mistakenly filed in the Federal Circuit and Family Court (Division 2) and beyond the prescribed deadline.
The primary issues considered were whether the Federal Circuit and Family Court had jurisdiction to hear the application for review, whether there was an abuse of process in the judgment to be reviewed and whether he had a valid counter-claim, set-off, or cross-demand equal to or exceeding the judgment debt which would then allow a bankruptcy notice to be set aside pursuant to s 40(1)(g) of the Bankruptcy Act 1966 (BA).
The Court treated the misfiled application and supporting affidavits as if they had been filed in the correct court in the interests of justice. The Court held that there was no evidence of fraud nor valid set-off and that the judgment reviewed was a regular exercise of jurisdiction in good faith.
The Court ultimately dismissed the bankrupt’s application and affirmed the registar’s original decision. Costs orders were also affirmed but with conditional treatment depending on whether a sequestration order is made.
The judgment can be read by clicking here
