Ashworth v Metcash Food & Grocery Pty Ltd

Consideration 16 On the face of the judgment, the judgment took effect as of 20 November 2014. 17 The debtor did not dispute that the creditor was entitled to claim interest for 21 November 2014. However, he argued that, having identified 21 November 2014 in the Schedule as the "date from" which interest was claimed, no interest ought to have been claimed for 21 November 2014. 18 In support of this argument, the debtor relied upon the decision of Burchett J in Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989) 86 ALR 283 ("Re Serafino"). In that case it was held that, as a matter of interpretation of s 85(2)(a) of the District Court Act 1973 (NSW) (the predecessor to rule 36.4), and particularly the words "as from", interest claimed in a bankruptcy notice should be calculated on the judgment excluding the date when the judgment came into being. 19 In Re Serafino, judgment was entered by consent on 2 December 1987. The bankruptcy notice claimed post-interest judgment commencing on that date. At the time, the form of the bankruptcy notice was different to the current form. In particular, the form did not provide for the attachment of a "schedule of post-judgment interest calculation". 20 The following principles are derived from Re Serafino: (1) Notice having been given under s 41(5), if in fact the bankruptcy notice claims an excessive amount, though by a small margin, its effectiveness is destroyed. See also Walsh v Deputy Commissioner of Taxation [1984] HCA 33; (1984) 156 CLR 337 at 339; (2) Generally, where time is to be computed from a day, that day is excluded from the computation: Associated Beauty Aids Pty Ltd v Federal Commissioner of Taxation [1965] HCA 20; (1965) 113 CLR 662 at 667-8 (Barwick CJ) ("Associated Beauty Aids"); (3) However, there is no general rule as to the consequences of the use of the preposition "from": Associated Beauty Aids at 668 (Barwick CJ), 669 (Windeyer J). 21 Re Serafino is not directly applicable to this case because it concerned the statutory entitlement to claim post-judgment interest, rather than the entitlement to claim interest having regard to the terms of the "schedule of post-interest calculation". In this case, the debtor does not dispute the creditor's statutory entitlement to claim post-judgment interest in respect of 21 November 2014. The issue is whether interest may be claimed in respect of that date, having regard to the reference to 21 November 2014 as the "interest rate period date from" in the Schedule to the bankruptcy notice. 22 The creditor also referred to Unicomb v Cairns [2009] FCA 988. In that case, it was argued that there was an understatement of interest in the bankruptcy notice because the creditor did not include interest for the date on which the judgment was handed down. Perram J rejected this argument relying, among other things, upon Re Serafino. 23 In my view, the Schedule requires the inclusion of the first and last dates of the period in respect of which interest is claimed. That interpretation of the form is based on the inclusion of the words "interest claim period" qualifying each of the "date from" and the "date to". In this case, the creditor was entitled to claim interest for the period 21 November 2014 to 4 December 2014 inclusive. In this case, the words "date from" are apt to refer to the first date in respect of which interest is claimed. 24 On the debtor's interpretation of the form of the Schedule, the appropriate date to include under the heading "interest claim period date from" is, in this case, date on which the judgment was made or given, that is, 20 November 2014. In my view, the inclusion of that date would tend to be productive of confusion because it would not form part of the "interest claim period". In contrast, the Schedule as completed correctly identifies the amount of interest to which the creditor is entitled and clearly identifies the first and last dates of the period in respect of which interest is claimed, thereby fulfilling the evident purpose of the schedule which is to assist the debtor to check the claim: Adams v Lambert at [13]. 25 Accordingly, I reject the debtor's contention that the Schedule overstates the interest to which the creditor is entitled because the "interest claim period date from" is 21 November 2014. 26 If I am wrong about the correct interpretation of the form of the Schedule, I would not accept that the inclusion of 21 November 2014 as the "interest claim period date from" required the creditor to claim less interest than the amount to which it was entitled, and which was specified in the bankruptcy notice. Based on a reading of the whole of the bankruptcy notice together with the attached judgment, I would infer that the creditor intended to claim the whole of the interest to which it was entitled (evidenced by the amount of the interest claimed) but incorrectly referred to 21 instead of 20 November 2014. I would consider the incorrect identification of the "interest claim period date from" by one day to be an irregularity in the notice: cf Adams v Lambert at [34]. There is no evidence that substantial injustice has been caused by the irregularity, and accordingly, s 306(1) of the Bankruptcy Act would operate to protect the bankruptcy notice from invalidity.

Conclusion 27 The application must be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.