Endresz v Commonwealth of Australia [2019] FCAFC 197 (15 November 2019) (Rares, Markovic and Charlesworth JJ)


Catchwords:


PRACTICE AND PROCEDURE – application of “slip rule” (r 16.05(2)(h) of Federal Circuit Court Rules 2001 (Cth)) to extend life of creditor’s petitions – where 12 month period had expired and creditor’s petitions had lapsed – whether slip rule available to retrospectively extend life of creditor’s petitions – whether invocation of slip rule precluded where independent discretion required by s 52(5) Bankruptcy Act 1966 (Cth) not in fact exercised – whether there was a relevant accidental slip or omission – whether discretion could only be exercised one way

PRACTICE AND PROCEDURE – whether Supreme Court had jurisdiction to hear and determine claims on which judgment debt in creditor’s petitions based – whether pleaded causes of action in statement of claim exceeded metes and bounds of indorsements in originating application – whether equitable jurisdiction of Supreme Court invoked – whether equitable claims liable to be struck out

BANKRUPTCY – whether primary judge failed to consider separate ground on which sequestration order ought not to have been made – whether finding that payments illegal and void precluded liability under second limb of Barnes v Addy – whether there was in reality a debt owing to the Commonwealth

Held: Appeal allowed – creditor’s petitions lapsed