FEDERAL COURT OF AUSTRALIA

Craven v Ready Flowers Pty Ltd [2014] FCA 467

THE COURT ORDERS THAT:

1.    the application will be refused;

2.    the applicant pay the respondent’s costs of the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The present applicant (“Mr Craven”) was served with a bankruptcy notice issued on 4 April 2014. The relevant debt was in the amount of $30,578.45, apparently being the amount of the taxed costs payable to the respondent (the “creditor”) pursuant to an order for costs made by Greenwood J on 5 December 2013. The proceedings before his Honour comprised an interlocutory application by Mr Craven for leave to appeal from an interlocutory order in the Federal Circuit Court, which application was dismissed with costs.

2    Mr Craven presently seeks an extension of time in which to comply with the bankruptcy notice in order to enable him to prosecute an application which he has made in this Court to set aside the order for costs made by Greenwood J, and for other orders. Mr Craven firmly asserts that he does not seek to appeal against the order made by Greenwood J dismissing the application for leave to appeal. As his Honour was exercising the appellate jurisdiction of the Court, I doubt whether Mr Craven may apply to set aside the costs order. Presumably, the application is made pursuant to r 39.05, but it is by no means clear to me that such is the case.

3    In any event an extension of time may only be granted pursuant to s 41(6C) of the Bankruptcy Act 1966 (Cth) if proceedings have been commenced to set aside the judgment or order which is the subject of the bankruptcy notice. Such an order cannot be made if the Court is of the opinion that the proceedings to set aside the judgment or order have not been instituted bona fide, or have not been prosecuted with due diligence.

4    The issue which Mr Craven seeks to ventilate in the proceedings to set aside the costs order involves an assertion that a statement made, on affidavit, in the proceedings in the Federal Circuit Court, was either “untrue” or a “half-truth”. The statement in question was that a business, previously conducted by the creditor, had, at some time in 2009, been sold to a Hong Kong company. The statement was apparently relevant to an assertion made in the Circuit Court proceedings that the creditor had held itself out as being an Australian company when it was not. I am not sure how the statement fitted into the case, but it does not seem to matter for present purposes.

5    Mr Craven seeks to establish the total or partial untruthfulness of the statement by reference to a number of statements from other people indicating that they had paid amounts by credit card, which amounts were eventually credited to an account kept by the creditor, such transactions having occurred since the alleged sale of the business in 2009. The actual circumstances in which the sale occurred have not been explained. However that issue was a live issue, if not in the proceedings in the Circuit Court, then certainly in the proceedings before Greenwood J. It seems that in the latter proceedings, Mr Craven sought to lead evidence of transactions of the sort to which I have referred. He was not permitted to do so.

6    In those circumstances, it seems to me that the issue has been fully ventilated in the Circuit Court and before Greenwood J. The application to set aside the order made by Greenwood J was only made after the bankruptcy notice was served. In the circumstances I am satisfied that the application to set aside the judgment has not been instituted bona fide. I decline to extend time for compliance with the bankruptcy notice. The application will be refused. I order that the applicant pay the respondent’s costs of these proceedings.

Associate:

Dated:    12 May 2014