Di Giaacomo, Vittoria v Boral Steel Ltd [1983] FCA 43

Re: Vittoria D1 Giacomo Ex parte: Boral Steel Limited

THE COURT ORDERS THAT :

1. Bankruptcy Notice herein No. B1734 of 1982 be set aside,
2. Petition No. P892 of 1982 be dismissed.

3. The Petitioning Creditor pay the debtor's costs of and incidental to the issuing of the bankruptcy notice herein No. B1734 of 1982 and of the Petition No. P.892 of 1982.

) ) BANKRUPTCY DISTRICT OF THE STATE ) ) OF NEW SOUTH WALES AND THE AUSTRALIAN )

The petition herein dated 2 August 1982 having been presented to the Court on 9 August 1982 was listed for hearing on 27 September 1982. On 24 September 1982 the debtor Vittoria Di Giacomo (1noorrectly referred to in the bankruptcy notice and the petition as Victor Di Giacomo) filed a notice of intention to oppose the petition together with an application seeking orders that the bankruptcy notice dated 16 April 1982 on which the said petition was based be set aside or altematively that service of the said bankruptcy notice be set aside. When the petition came on for hearing on 27 September 1982 the matter was stood over until 25 October 1982 on which date evidence was led and submissions made by legal representatives for both the debtor and the petitioning creditor in regard to the application

The debt alleged to be owing: by the debtor to the judgment

creditor 1s a District Court judgment debt of $4242.90 entered on 11 March 1982.

The bankruptcy notice is dated 16 April 1982. 'The petition 1s founded upon

an alleged act of bankruptcy consisting of the failure on or before 27 May 1982 to comply with the requirements of the bankruptcy notice served on 13 May 1982 or to satisfy the Court of a counter-claim, set-off or cross-demand equal

(1) the debtor, on 16 April 1982, filed in the District Court

Sydney a statement of confession to the amount of the judgment

creditor's statement of liquidated claim together with 2

application under s.88 of the District Court Act 1973to pay

(i2) the Registrar of the District Court on 10 May 1982 made

an ex parte order that the amount of the judgment be paid by

(iii) the bankruptcy notice herein (a 14 day notice) was

(av) On 14 May 1982 the judgment creditor filed a notice

of objection to the payment of the debt by instalments

and consequently the District Court Registrar set down the

debtor's application for leave to pay the debt by instalments

(v) On 15 July 1982 the solicitor for the judgment creditor

appeared before the District Court. As there was no response

by the debtor when the matter was called on the order of the

District Court Registrar of 10 May 1982 was rescinded.

(viz) Later on the 15 July 1982, after the judgment creditor's

solicitor had 1éFt~the District-Court,~the debtor "inquired of the Registrar as- to when his application was to be dealt

with. The debtor has swom that he was present at the District

Court at all relevant tumes that day and had not heard his

name called. As the order of the 10 May 1982 had then been rescinded and as the creditor's solicitor had left the Court,

the debtor who was appearing in person was advised to make a fresh application that day to pay the judgment debt by instal- ments. This he did.

(vii) The second application under s.88 of the District Court Act dated 15 July 1982 was dealt with ex parte by the District Court Registrar on 28 July 1982 on which date an order that the debt be paid by certain nominated instalments was made.

(vi2i) On 6 August 1982 the judgment creditor filed an

objection to the order of the District Court Registrar that

the debt be paid by instalments. The second application came

on for hearing on 2 September 1982 when both parties appeared and the order of 15 July 1982 was varied so that instalments were increased to the rate of $200.00 per month, the first payment being

Section 88 of the District Court Act (N.S.W.) 1973 reads:

"(8) Where the Court or the registrar makes an order under this section, the order shall, while it remains in force, operate as a stay of enforcement of the judgment in respect of which the order was made, except enforcement by way of a garnishee order

to which section 98 applies made before the order under this section was made."

It will be seen that on 13 May 1982 when the bankruptcy notice herein was served there was in force an order of the District Court

Registrar made on 10 May 1982 pursuant to s.88 of the District Court Act.

The debtor has submitted that in view of the facts set out in para. (1) to (iii) above the bankruptcy notice herein was bad as at the date of its service on the debtor. 'That is to say that the said notice

could not on 13 May 1982 have founded the alleged act of bankruptcy as set

out 1n the petition. In this regard he relied upan the dicta of Gibbs J.

(as he then was) in Re Moss;Ex parte Tour Finance Limited, 13 F.L.R. 101

@ 103-4 and of Riley J. 1m Re Padagas Ex parte Carrier Air Conditioning Pty. Limted, 30 F.L.R. 170 @ 172.

"Secondly, the words "the execution of which has not been stayed", which appear not only in the prescribed form of bank- ruptcy notice but also in the words of s.40(1) (g) of the Bankruptcy Act 1966, do not mean that execution has never been stayed. If that were their meaning they would have the inconvenient result that if execution on a judgment had once been stayed a bankruptcy notice could never afterwards be issued on such judgment, notwithstanding that the period of the stay had long since elapsed and the judgment debt had never been paid. However, the words of the notice and of the section speak as at

the time when the notice is served and refer to a stay of execution which has continued in force up to the

time of the service of the notice. Similarly, s.41(3) (b), which provides that a bankruptcy notice shall not be issued if at the time of the application for its issue execution of the judgment or order to which it relates has been stayed, refers to a stay in force at the time

of the application. 'The effect of these provisions is that if at the time of the issue or the service of the notice the execution of the judgment on which the notice is founded has been stayed, and the stay is still in force, so that at that tume the creditor is not entitled immediately to issue execution on the judgment, the notice will be bad. However, the fact that there has previously been a stay of execution, which has ceased

to operate before the time of the application for the issue of the notice, will not prevent the notice fran being a good one. "

" Tt was submitted by counsel for the debtor that the order for payment by instalments had two effects, each of which was fatal to the petition: 1t stayed execution of the judgment, and it removed the debt fram the class of debts "payable either immediately or at a certain future time" referred to in s.44(1) (b) of the Bankruptcy Act 1966.

By reason of s.88(8) of the District Court Act an instalment order, while it remains in force, operates "as a stay of enforcement of the judgment" in respect of which it was made. (There is an exception which is not material to this case.) Had this order so operated before the time of the issue or the service of the bankruptcy notice the notice would have been bad: ss.40(1) (g), 41(3) (b) of the Bankruptcy Act; Re Moss; Ex parte Tour Finance Ltd. (1968) 13 F.L.R. 101 @ 103-104. "

The judgment creditor has submitted that the observations of both Gibbs J. and Riley J. that a bankruptcy notice is bad if at the time of its service upon the debtor there is in force an order made under s.88 of the District Court Act were obiter and should not be followed. He submitted that the proper meaning of s.40(1)(g) when read with s.41(3Xa) and (b) was that the proviso provided for in s.40(1) (g) was speaking only as at the date of the issuing of the bankruptcy notice and not the date

It 1s clear that the observations of both Gibbs J. and Riley J. 1n respect of s.40(1) (g) of the Bankruptcy Act set out above are obiter and as such are not binding. But with respect I agree with those observations. 'The instalment order made under s.88 of the District Court Act on 10 May 1982 operated "as a stay of enforcement of the judgment" in respect of which it was made and such order so operated on 13 May 1982, the date of the service of the bankruptcy notice. Accordingly I am of the view that the bankruptcy notice could not then have founded .the act.of bankruptcy .alleged-in the

But the judgment creditor further submts that as the order of the District Court dated 10 May 1982 to pay by instalments was rescinded on 15 July 1982 (see fact (v) above) and as there was no further order under s.88 of the District Court Act until 28 July 1982 (see fact (vi2) above), therefore on and after 15 July 1982 the efficacy of the bankruptcy notice, which had been suspended whilst the first instalment order was in force, was revived without further service thereof. Thereafter on the expiration of the 14 days provided for in such notice (that is after 29 July 1982) if the judgment debt had not then been paid or otherwise satisfied, the debtor would have then committed an act of bankruptcy within the meaning of s.40 of the Bankruptcy Act. Acoordingly, it was submitted that the petition herein, having been dated and presented after 29 July 1982 was valid subject to the Court granting leave to amend the amount claimed therein to reflect any instalment payments that may have been made by the debtor. This submission was of course made on the basis that the further order of the District Court under s.88 made on 28 July 1982 (fact (vi1) above) had no effect upon the bankruptcy notice herein as de facto service of that notice had been made prior to that date, namely on 13 May 1982 and such service had become "effective" after 15 July 1982 and before

If as I have found the bankruptcy notice herein was bad at the date of service then that is the end of that notice. 'the position, in my view, 1S not simply that the service of a bankruptcy notice conceming a judgment debt in respect of which an order under s.88 had been made is bad. Clearly the words of para. (g) of sub-s.40(1)

of the Bankruptcy Act speak as -at the time when the notice is served and refer to a stay of execution which has continued in force up to

Accordingly, the bankruptcy notice herein dated 16 April 1982 should be set aside. Consequently the petition herein dated 2 August 1982 and presented on 9 August 1982 is dismissed. 'The petitioning creditor 1s to pay the debtor's costs as agreed or in default of agreement in accordance with the Act. 'The District Court file No.525 of 1982 is

to be returned to the Registrar of that Court in Sydney.