Farrugia, in the matter of Farrugia v Farrugia

REASONS FOR JUDGMENT 1 This proceeding, which involves an application to set aside a bankruptcy notice, is yet another episode in the Farrugia saga. That saga, it appears from the evidence before me, began at least as long ago as the 1980s. 2 In this episode, the protagonists are Messrs Alfred and Frank Farrugia ("Alfred" and "Frank" respectively), who are brothers, and it is Alfred who is applying to set aside a bankruptcy notice served on him by Frank. 3 Other members of the family it is convenient to introduce immediately are Mr Joseph Farrugia ("Joseph"), who is Alfred's and Frank's brother, and Mr Anthony Farrugia ("Anthony"), who is Frank's son. 4 Before coming to the grounds on which Alfred applies to have set aside the bankruptcy notice served on him by Frank, it is convenient to recite certain facts up to and including the service on Alfred of that bankruptcy notice, which facts I find established on the evidence before me. 5 In 1985, Joseph lent Alfred a sum of money, which sum of money Alfred did not repay. Consequently, in 1992, Joseph sued Alfred in the Local Court at the Downing Centre, Sydney, New South Wales ("the Downing Centre Local Court") and, on 3 December 1992, obtained a judgment against him. That judgment was for $39,850.43. 6 In 1989, Anthony also lent Alfred a sum of money, which sum of money Alfred also did not repay. Consequently, also in 1992, Anthony sued Alfred in the Downing Centre Local Court and, also on 3 December 1992, obtained a judgment against him. That judgment was for $9,842.11. 7 On 4 October 1994, Anthony assigned to Frank Alfred's judgment debt to Anthony. Also on that date, Joseph's and Frank's solicitors, McGirr James Hall & Associates, wrote directly to Alfred, reminding him of the two judgments against him and informing him of Anthony's assignment to Frank of Alfred's judgment debt to Anthony. The solicitors also threatened enforcement proceedings, unless the two judgment debts were paid forthwith. It is plain that Alfred received that letter, since, shortly afterwards, his solicitors replied to it on his behalf. 8 On 6 October 1994, Frank applied for an apprehended domestic violence order against Alfred in the Local Court at Redfern, New South Wales ("the Redfern Local Court"), based on two matters: first, Frank's intention to take steps to have Alfred's home sold in order to recover the sum now due to Frank under the assigned judgment debt to Anthony; and, secondly, threats which had been made shortly before by Alfred to Joseph and Frank that he would kill them if they took steps to "claim you [sic] money". Shortly afterwards, the order applied for was granted (apparently for twelve months), but there is no evidence before me to suggest that Frank then took steps to have Alfred's home sold. 9 In early 1995, Alfred moved in the Downing Centre Local Court for certain orders in respect of the judgment which had been obtained against him by Joseph in 1992. I have no direct evidence of the nature of the orders sought, the making of which Joseph opposed, but I infer, from some evidence to which I will soon refer, that Alfred was seeking to have Joseph's judgment against him set aside. 10 On 27 April 1995, a sequestration order was made against the estate of Alfred under the Bankruptcy Act 1966 (Cth) ("the Act"). That order was made on the petition of a creditor (apparently) named Partmasters Pty Limited ("Partmasters"). (The creditor's name was spelled in various different ways in documents in evidence before me, including in documents generated by its own solicitors.) 11 On 5 October 1995, Alfred signed a statement of affairs under the Act. There is no direct evidence before me as to whether and, if so, when that statement was filed, but I am prepared to infer that it was filed no later than a short time after its being signed, since it is apparent from some evidence to which I will soon refer that the Official Trustee ("the trustee"), Alfred's trustee in bankruptcy, had a copy of that statement by 17 October 1995. It appears to me unlikely that Alfred would have furnished a copy of that statement to the trustee without having filed the original. 12 On 10 October 1995, Joseph's and Frank's solicitors wrote to the trustee, referring to the assigned judgment debt to Anthony and also referring to a judgment for $47,428.59 which had been obtained by Joseph against Alfred on 28 September 1995. On 17 October 1995, Joseph's and Frank's solicitors wrote again to the trustee, referring again to both of those judgments. I infer from the solicitors' reference in both of those letters to the second of those two judgments that Alfred had succeeded earlier in the year in having Joseph's 1992 judgment against him set aside, but that Joseph had subsequently obtained judgment against Alfred again on the same claim. 13 Also on 17 October 1995, the trustee replied to Joseph's and Frank's solicitors' letter to him dated 10 October 1995, advising that Alfred's only known asset was his home, which he had valued in his statement of affairs at $280,000, but which was mortgaged to the extent of about $94,000. 14 During October 1995, Frank sought in the Redfern Local Court to have extended the apprehended domestic violence order which he had earlier obtained against Alfred. That application failed, but in the course of it, Alfred said to the presiding Magistrate, "We are going to fix the problems between us and I'm going to give them [I infer, Joseph and Frank] all the money". 15 On 3 November 1995, Joseph and Frank each lodged with the trustee a proof of debt in Alfred's bankruptcy, the debt concerned being, in the case of Joseph, the 1995 judgment debt and, in the case of Frank, the assigned 1992 judgment debt to Anthony. 16 On 29 November 1995, Alfred's solicitors wrote to Joseph's and Frank's solicitors, saying, "We refer to our recent telephone conversations herein. We are instructed to advise you that our client and his brothers, your clients, have now reached agreement as to the settlement of the issues in dispute between them. We are instructed that: 1. Our client will acknowledge the sums due to your respective clients pursuant to the judgements [sic]. 2. Our client will make suitable arrangements for the repayment of those debts and will commence that repayment during the course of the next six months. 3. In return your clients have agreed to withdraw each of their Proofs of Debt lodged with the Insolvency and Trustee Service Australia. Would you please confirm that your instructions accord with the above and confirm to ITSA as soon as possible that your clients wish to withdraw their Proofs of Debt." 17 On the same day, Alfred's solicitors wrote to the trustee, saying (emphasis in original), "We are instructed by our client that Agreement has been reached between him and his brothers in respect of the settlement of all matters in dispute between them. We now enclose a copy of correspondence today forwarded to Messrs McGirr James Hall & Associates confirming [sic] that settlement. We understand that you will shortly receive instructions from that firm in relation to the withdrawal of two of the Proofs of Debt lodged with you." The letter also referred to Alfred's expectation that he would be able to pay in full within two weeks his debt to Partmasters and requested that the trustee take no action in the meantime regarding a sale of Alfred's home. 18 On 4 December 1995, the trustee replied to Alfred's solicitors' letter of 29 November 1995, referring both to it and to "today's telephone conversation between Mr Davis of your firm and the writer concerning your client's proposal to settle the outstanding claims of the bankruptcy". The trustee advised that he would give Alfred until 15 January 1996 "to settle the outstanding claims". 19 On 8 January 1996, Alfred's solicitors wrote to the trustee, saying that they held in their trust account funds sufficient to pay Partmasters' claim, but that before paying that claim, they required details of Partmasters' and the trustee's costs and "Confirmation that our client[']s brothers have withdrawn their proofs of debt in this matter". 20 On 9 January 1996, the trustee replied to the letter to which I have just referred, giving the required costs details and adding, "Your client's brothers have not withdrawn their claims against the estate". 21 On 19 June 1996, Joseph's and Frank's solicitors wrote both to the trustee and to Alfred's solicitors, saying, "We … now advise you that our clients … wish to withdraw their Proof[s] of Debt…." 22 On 21 June 1996, Alfred's solicitors wrote to the trustee, saying (emphasis in original), "We now enclose a copy of correspondence from McGirr James Hall & Associates indicating that our client[']s brothers wish to withdraw their Proofs [of] Debt herein. Would you please confirm, as soon as possible, that those Proofs of Debt have been withdrawn. Would you also confirm that upon payment of the petitioning creditor, the petitioning creditor[']s agreed costs, and your costs in this matter…, a Certificate of Annulment will issue from your office forthwith." 23 On 19 July 1996, Alfred's solicitors wrote to the trustee, noting that "our client[']s brothers have withdrawn their Proofs of Debt", enclosing a cheque in payment of the trustee's costs and confirming that they had paid moneys to the solicitors both for Partmasters and for another creditor. They added, "We have asked each of those parties to confirm to you that all monies [sic] due to their clients have been repaid and that you are at liberty to provide to our client a Certificate of Annulment. We would be pleased to receive your confirmation that you will do so as a matter or [sic] urgency." 24 On 22 July 1996, Alfred's solicitors wrote to the trustee, saying, "We are instructed that our client[']s brothers and both creditors in the Estate have now withdrawn their proofs of Debt herein…. Accordingly we would be pleased if you would, as a matter of urgency[,] prepare a Certificate of Annulment herein for our collection. We also note that you are holding our client[']s passport in this matter. We shall await your advice as to when we might collect the foregoing documents." 25 On 29 July 1996, the trustee gave a written certificate setting out, as the date of the annulment of Alfred's bankruptcy pursuant to subs 153A(1) of the Act, 24 July 1996. 26 So far as I am able to tell from the evidence before me, there was then a lull in events relevant for present purposes until about a year ago. 27 Then, by notice of motion dated 1 April 1999, Frank moved in the Downing Centre Local Court for an order that "The Assignee of the chose in action, FRANK FARRUGIA, be substituted as Judgment Creditor" in respect of the assigned judgment debt to Anthony. 28 On 19 April 1999, the court made the order sought, "SUBJECT TO THE JUDGMENT CREDITOR NOTIFYING THE JUDGMENT DEBTOR OF THE MOTION AND ITS GRANTING IN WRITING PRIOR TO ANY FURTHER ENFORCEMENT ACTION". 29 On 23 April 1999, Frank's solicitors wrote to Alfred's solicitors, giving the notice referred to in the Court's order and advising that they had been instructed to "commence enforcement proceedings forthwith. We advise that our client requires payment of the full amount of the judgment debt and this position is not open to negotiation". 30 By notice of motion dated 30 April 1999, Alfred moved in the Downing Centre Local Court for an order setting aside the judgment which had been obtained against him by Anthony in 1992, in respect of which judgment Frank was now the judgment creditor. In support of that motion, Alfred swore an affidavit dated the same date as the notice of motion. The motion was fixed for hearing on 21 May 1999, but was struck out with costs on that day, because Alfred did not appear. Shortly thereafter, Alfred paid to Frank the costs of that motion. 31 On 12 October 1999, the Official Receiver for the Bankruptcy District of New South Wales issued a bankruptcy notice in relation to Alfred at the instance of Frank, based on the assigned judgment debt to Anthony. That notice was served on Alfred on the following day. 32 (I should, perhaps, add here three more facts, which I do not find established on the evidence before me, but rather have read of in the reasons for judgment of Madgwick J in Farrugia v Farrugia [2000] FCA 129 (2 March 2000, unreported). On 3 March 1999, Joseph procured the issue of a bankruptcy notice in relation to Alfred, based on the 1995 judgment debt. On 24 March 1999, that bankruptcy notice was served on Alfred, but, on 2 March 2000, it was set aside by Madgwick J.) 33 With my recitation of certain facts up to and including the service of the bankruptcy notice on Alfred by Frank now complete, I turn to Alfred's attacks on that bankruptcy notice. They fall into two categories: first, there are those which depend on the circumstances of Alfred's earlier bankruptcy; and, secondly, there are those which depend on the form and contents of the bankruptcy notice. It is convenient to deal with the two categories of attacks on the bankruptcy notice in the order in which I have just mentioned them. Before I deal with the first category of attacks on the bankruptcy notice, however, I mention the curious fact that, although all of the attacks in that category would have been equally available to Alfred in the proceeding before Madgwick J, in which Alfred had the same legal representatives as in the present proceeding, none of them was made at that time. 34 Two of Alfred's attacks on the bankruptcy notice which depend on the circumstances of his earlier bankruptcy focus on the apparent annulment of that bankruptcy on 24 July 1996. Before, however, dealing with those attacks, I should set out the relevant statutory provisions regarding annulment as they were at the relevant time. They were contained in s 153A of the Act, which provided: "153A.(1) If the trustee is satisfied that all the bankrupt's debts have been paid in full, the bankruptcy is annulled, by force of this subsection, on the date on which the last such payment was made. (2) The trustee must, as soon as practicable after that date, give to the Registrar a written certificate setting out the former bankrupt's name and bankruptcy number and the date of the annulment. (3) The Registrar must enter in his or her records the fact that the bankruptcy has been annulled and the date of the annulment. … (6) In this section: 'bankrupt's debts' means all debts that have been proved in the bankruptcy…." (Those provisions have since been amended by substituting the Official Receiver for the Registrar in subs 153A(2) and by omitting subs 153A(3). It should also be noted that, at the relevant time, s 83 of the Act provided that, for the purposes of the Act, a creditor should be taken not to have proved a debt until a proof of debt lodged by him in respect of that debt had been admitted.) 35 Relying on the decision of du Parcq LJ (sitting as an additional Judge of the King's Bench Division) in John v Mendoza [1939] 1 KB 141, Alfred submitted that the annulment of a bankruptcy under subs 153A(1) of the Act on the ground that the trustee is satisfied that all the bankrupt's proved debts have been paid in full creates an estoppel by record against any creditor who might have received a dividend in that bankruptcy if it had not been annulled, at least where that creditor has entered into and complied with a particular arrangement with the bankrupt before the annulment to withdraw a proof of debt already lodged by the creditor and admitted by the trustee. Here, it was said, Frank had entered into a particular arrangement with Alfred before the annulment to withdraw a proof of debt already lodged by him and admitted by the trustee. That arrangement had been complied with by Frank and the bankruptcy had later been annulled. Accordingly, an estoppel by record precluded Frank from now claiming that the assigned judgment debt to Anthony had not been paid (nonetheless though, it was volunteered during the course of argument, it had not in fact been paid). 36 It is necessary, in dealing with that submission, to consider at the outset whether Frank did in fact enter into and comply with a particular arrangement with Alfred before the annulment of Alfred's bankruptcy to withdraw a proof of debt already lodged by him and admitted by the trustee. 37 First, as to the admission by the trustee of Frank's lodged proof of debt, that proof of debt was lodged, as I have already mentioned, on 3 November 1995. There is evidence before me, consisting of the terms of a submission prepared within the trustee's office in July of 1996, that 3 November 1995 had been the last date for the lodging of proofs of debt in Alfred's bankruptcy. Subsection 102(1) of the Act generally imposes on a trustee (and imposed on a trustee at the relevant time) a fourteen day time limit within which to deal with such proofs of debt. I am prepared to infer that, by 17 November 1995, the trustee had dealt with Frank's proof of debt and had done so by admitting it. If the trustee had not admitted it, it appears to me that his subsequent conduct with respect to it would have been different than it was. 38 Secondly, as to the existence of an arrangement entered into subsequently between Frank and Alfred, I am prepared to infer that Alfred's solicitors' letter dated 29 November 1995 to (relevantly) Frank's solicitors does evidence Frank's having entered into a particular arrangement with Alfred before the annulment of Alfred's bankruptcy to withdraw his proof of debt. I do so because, so far as appears from the evidence before me, Frank's solicitors did not respond to that letter by denying the existence of such an arrangement and because Frank afterwards did withdraw his proof of debt. Furthermore, the terms of the 29 November 1995 letter suggest that such an arrangement had been reached shortly before the date of that letter. I am therefore prepared to infer that the date of that arrangement was later than 17 November 1995. 39 Thirdly, as to Frank's compliance with the particular arrangement, there were his solicitor's letters to Alfred's solicitors and to the trustee, both dated 19 June 1996. 40 Fourthly, as to the annulment of Alfred's bankruptcy, there was the trustee's certificate of 29 July 1996, certifying that that had occurred on 24 July 1996. 41 However, even accepting that Frank had entered into and complied with a particular arrangement with Alfred before the annulment of the latter's bankruptcy to withdraw a proof of debt already lodged by Frank and admitted by the trustee, here, the annulment of Alfred's bankruptcy was not the result of a decision made by some tribunal whose decision was capable of creating an estoppel by record, as it had been in John. (The tribunal there was the English High Court of Justice.) Instead, the annulment here was the result of the operation of a statutory provision, namely, subs 153A(1) of the Act. Nor could it be said that the mere achieving by a trustee of a state of satisfaction that all a bankrupt's proved debts have been paid in full is itself a decision which is capable of creating an estoppel by record. In those circumstances, Alfred's argument based on estoppel by record must fail. 42 In the alternative to his argument that the annulment of his bankruptcy had created against Frank an estoppel by record which precluded Frank from relying thereafter on the assigned judgment debt to Anthony, Alfred sought to argue that his bankruptcy had not, in truth, been annulled, as certified in the trustee's certificate of 29 July 1996, and that he had instead been automatically discharged from bankruptcy at the end of the period of three years from the date on which he had filed his statement of affairs: see subs 149(4) of the Act. (The date of that filing, though unknown, was, I am prepared to infer (although no earlier than 5 October 1995, the date on which Alfred signed his statement of affairs), no later than 17 October 1995, the date on which the trustee referred in correspondence to the contents of that statement.) Further, it was submitted, the effect of that discharge had been to release Alfred from all debts provable in his bankruptcy: see subs 153(1) of the Act. Thus, Alfred had been released by operation of statute from the assigned judgment debt to Anthony before Frank had sought to rely on that judgment debt as the foundation for the bankruptcy notice. 43 The ground of the argument that Alfred's bankruptcy had not, in truth, been annulled was that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred's proved debts had been paid in full and that the existence of such a lawfully-open satisfaction in the trustee was essential to Alfred's bankruptcy's being annulled by force of subs 153A(1) of the Act. 44 As to the submission that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred's proved debts had been paid in full, there are, it appears to me, at least two answers. 45 First, subs 30(1) of the Act is the source of this Court's power to set aside a bankruptcy notice: see Bryant v Commonwealth Bank of Australia (FCA: Davies, Foster and O'Loughlin JJ, 11 November 1994, unreported) at 4. That provision confers powers the exercise of which is discretionary: see, for example, Re Ellis; Ex parte Jefferson (FCA: Drummond J, 17 February 1995, unreported) at 4. It would not, in my view, be a sound exercise of discretion in the present case to set aside the bankruptcy notice, based on acceptance of an argument that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred's proved debts had been paid in full, when it had been Alfred himself who had sought to persuade the trustee to achieve that state of satisfaction and who had then reaped the benefit of the trustee's achieving that state of satisfaction by subs 153A(1)'s apparently operating to annul his bankruptcy: compare the often-quoted statement of Scrutton LJ in Verschures Creameries v Hull and Netherlands Steamship Co, Limited [1921] 2 KB 608 at 612: "A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction." 46 Secondly, even if it be accepted that Alfred may now properly argue that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred's proved debts had been paid in full, I am not persuaded that such satisfaction had not been open in law to the trustee. 47 The basis of the argument that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred's proved debts had been paid in full was, as I understood it, Alfred's solicitors' letter dated 29 November 1995 to Joseph's and Frank's solicitors. It was said that the only inference available to be drawn from that letter was that it had been agreed that, although payment by Alfred to Joseph and Frank of their respective judgment debts would "commence … during the course of the next six months" (a period which might have ended as late as 29 May 1996), it would not be completed by 24 July 1996. 48 It is not clear to me why the terms of the letter to which I have just referred should be read as necessarily implying that it had been agreed that Alfred would not have completed the contemplated payments to Joseph and Frank of their respective judgment debts by 24 July 1996. On the other hand, it appears to me that, placed as the trustee was on that date, there was material before him which positively suggested that those payments had been completed by that date, namely, the letters to him from Alfred's solicitors of 21 June 1996, 19 July 1996 and 22 July 1996, all of which had requested him to give a certificate of annulment. It appears to me that the trustee was entitled to assume from the making of those requests for a certificate of annulment that Alfred's proved debts to Joseph and Frank had now been paid in full, since he was also entitled to assume that Alfred's solicitors would know that he could not properly give such a certificate unless all of Alfred's proved debts had been paid in full and would therefore not have requested a certificate of annulment unless they had been. The trustee would also have been aware that, although Alfred's solicitors had been foreshadowing since 29 November 1995 that Joseph and Frank would "shortly" be withdrawing their proofs of debt, that had not occurred until 19 June 1996. The trustee might well have concluded in those circumstances that Joseph's and Frank's hesitation in that respect had been ended by the completion of the contemplated payments to them by Alfred. 49 In the circumstances, I reject the submission that Alfred's bankruptcy had not, in truth, been annulled, and that he had instead been automatically discharged from his bankruptcy at some later time. 50 I turn now to Alfred's last attack on the bankruptcy notice depending on the circumstances of his earlier bankruptcy. That attack was that the arrangement entered into between Alfred and (relevantly) Frank, which arrangement was evidenced by Alfred's solicitors' letter dated 29 November 1995 to Frank's solicitors, had amounted to an accord and satisfaction in relation to the assigned judgment debt to Anthony, with the result that that judgment debt had been extinguished before Frank procured the issue of a bankruptcy notice in reliance on it. 51 It is convenient, before dealing with that attack, to repeat what were said, in the relevant letter, to be the matters which had been agreed on between Alfred, on the one hand, and Joseph and Frank, on the other. They were: "1. Our client will acknowledge the sums due to your respective clients pursuant to the judgements [sic]. 2. Our client will make suitable arrangements for the repayment of those debts and will commence that repayment during the course of the next six months. 3. In return your clients have agreed to withdraw each of their Proofs of Debt lodged with the Insolvency and Trustee Service Australia." 52 In my view, the submission that the arrangement entered into between Alfred and (relevantly) Frank amounted to an accord and satisfaction in relation to the assigned judgment debt to Anthony must fail, for the simple reason that, on the proper construction of that arrangement (even assuming for present purposes that it amounted to a contract, which may be doubtful), Frank was agreeing to abandon by it, not the assigned judgment debt to Anthony, but only his claim in Alfred's bankruptcy in reliance on that judgment debt. (My doubt as to the contractual character of the arrangement flows from the inclusion in it of a requirement for the subsequent "mak[ing of] suitable arrangements for … [ ]payment", which suggests to me that, in a fundamental respect, the arrangement was nothing more than an "agreement to agree".) 53 Certainly, the arrangement as recorded by Alfred's solicitors contains no express promise by Frank to abandon the assigned judgment debt to Anthony, as opposed to abandoning his claim in Alfred's bankruptcy. Nor do I discern any reason to construe the arrangement as containing an implied promise by Frank to that effect. Indeed, the obligations expressly undertaken by Alfred under the arrangement are antithetical to any conclusion that Frank was impliedly promising to abandon by the arrangement the assigned judgment debt to Anthony. That is because Alfred was promising, first, to "acknowledge the sum[ ] due" to Frank "pursuant to the judgement[ ] [sic]" and, secondly, to make suitable arrangements "for the repayment of th[at] debt[ ]" (emphasis added). 54 Having dealt now with those attacks by Alfred on the bankruptcy notice depending on the circumstances of his earlier bankruptcy, I turn to those attacks by him on it depending on its form and contents. 55 The first of those attacks focuses on the fact that, in the bankruptcy notice served on Alfred, the following words which appeared on the first page of it did not appear in bold typeface, but only in regular typeface: "This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it". 56 By way of introduction to that attack, it is convenient to refer to certain provisions of the Act and the Bankruptcy Regulations 1996 (Cth) ("the Regulations") and to a certain form appearing in a Schedule to the Regulations. 57 Subsection 41(1) of the Act provides for the issue of a bankruptcy notice by an Official Receiver. Subsection 41(2) of the Act provides, "The notice must be in accordance with the form prescribed by the regulations". Subregulation 1.03(2) of the Regulations provides, "A reference in these Regulations to a form of a specified number is a reference to the form of that number in Schedule 1". Regulation 4.02 of the Regulations (together with a note which follows that regulation) reads as follows: "4.02 (1) For the purposes of subsection 41 (2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed. (2) A bankruptcy notice must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes). (3) Subregulation (2) is not to be taken as expressing an intention contrary to section 25C of the Acts Interpretation Act 1901. [NOTE: Under section 25C of the Acts Interpretation Act 1901, where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient; see also paragraph 46 (1) (a) of that Act for the application of that Act to legislative instruments other than Acts.]" In Form 1 in Sch 1 to the Regulations, the words which appeared on the first page of the bankruptcy notice served on Alfred by Frank, which words I have quoted above, do appear; however, they appear in Form 1 in bold, rather than in regular, typeface. Finally, subs 306(1) of the Act provides: "Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court." That provision, as a result of the High Court's decision in Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, is to be construed as though its opening four words comprehend, among other things, bankruptcy notices. 58 (I should note here that, in reaching the conclusion in Kleinwort Benson Australia to which I have just referred, the High Court relied on a decision of the Judicial Committee of the Privy Council which had concerned a regime in which bankruptcy notices were issued by a court, so that it is easy to see why the Judicial Committee had, in its decision, treated the act of issuing a bankruptcy notice as a "proceeding". It is perhaps less easy to see why the same conclusion should have been reached under a regime in which bankruptcy notices were issued by a Registrar in Bankruptcy, as they were at the time of Kleinwort Benson Australia. The High Court did not, in Kleinwort Benson Australia, advert to the distinction. Furthermore, it is perhaps even less easy to see why the same conclusion should be reached under the present regime, where bankruptcy notices are issued by an Official Receiver. Nevertheless, I do not consider that it is for me to proceed on any basis other than that that conclusion should be reached.) 59 In that aspect of his attack on the bankruptcy notice served on him which I am presently discussing, Alfred submitted in effect that, whenever there existed any disconformity, so far as "format" was concerned, between a bankruptcy notice and Form 1 of Sch 1 to the Regulations, it was to subs 306(1) of the Act that one turned in order to decide whether that notice was valid, to the exclusion of (relevantly) s 25C of the Acts Interpretation Act. It followed, according to that submission, that subreg 4.02(3) of the Regulations was either invalid or, if not invalid, at least of no operative effect, because it proceeded on the assumption that s 25C of the Acts Interpretation Act was applicable in the resolution of the question whether the notice was valid. Further, it was submitted that, if there was any disconformity, so far as "format" was concerned, between a bankruptcy notice and Form 1 of Sch 1 to the Regulations, subs 306(1) of the Act could not prevent that notice's invalidity, because such a notice did not suffer merely from "a formal defect or an irregularity" within the meaning of that provision. It did not do so, because the notice failed to meet a requirement made essential by subreg 4.02(2) of the Regulations. 60 If the issue as to the validity of the present bankruptcy notice raised by the omission to use bold typeface in a certain respect were to be resolved without reference to any of the existing authorities on subregs 4.02(2) and (3) of the Regulations, then I would have thought that the correct analysis of it began with a consideration of the terms of subs 41(2) of the Act. 61 That subsection, which was inserted into the Act by the Bankruptcy Legislation Amendment Act 1996 (Cth) ("the amending Act"), s 3 and Sch 1, item 111, requires a bankruptcy notice to be, not "in" the form prescribed by the regulations, but rather "in accordance with" that form. As was said by Lord Esher MR and Cotton, Lindley, Bowen and Lopes LJJ in Ex parte Stanford. In re Barber (1886) 17 QBD 259 at 269 of a similar statutory provision, "The distinction can scarcely be accidental". 62 That the distinction was not accidental is emphasised by comparing item 111 of Sch 1 to the amending Act with other items of that Schedule. For instance, item 122 inserted into the Act subs 47(1A), which provided that a creditor's petition "must be in the form prescribed" (emphasis added). Likewise, item 132 amended s 54A of the Act, so that it permitted a debtor to present "a declaration, in the approved form, of the debtor's intention to present a debtor's petition" (emphasis added). The terminology inserted into the Act by each of those items may obviously be compared with that inserted by item 111. However, what is even more striking about items 122 and 132 (which were not the only items to amend the Act by inserting provisions requiring particular documents to be in particular forms) is that, in each case, the change worked by the item concerned superseded an earlier requirement in the Act that an equivalent document be in accordance with a particular form. Item 122 repealed par 47(1)(a) of the Act, which had provided that a creditor's petition "shall be in accordance with the prescribed form" (emphasis added), while item 132 amended s 54A of the Act, which had formerly permitted a debtor to present a declaration, "in accordance with the prescribed form", of intention to present a debtor's petition (emphasis added). 63 In Stanford, their Lordships had been speaking of s 9 of the Bills of Sale Act (1878) Amendment Act, 1882 (UK), which provided, "A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with the form in the schedule to this Act annexed" (emphasis added). In light of the "in-in accordance with" distinction to which they had earlier drawn attention, their Lordships later said (at 270) of the requirement that a bill of sale must be made "in accordance with" the form in the schedule to the Act, "A bill of sale is surely in accordance with the prescribed form if it is substantially in accordance with it, if it does not depart from the prescribed form in any material respect". In other words, because of the use in s 9 of the phrase "in accordance with", rather than the word "in", that section was to be construed as laying down a requirement of substantial compliance with the scheduled form. Certainly, I am in no doubt whatever that Lord Esher MR, by joining with the other five judges who were jointly giving their reasons for judgment in Stanford, was intending so to construe s 9, because, in Roberts v Roberts (1884) 13 QBD 794, he (as Brett MR) had said (at 803) in terms, in light of use of the "in accordance with" phrase in s 9, "There must be a substantial compliance with the form contained in the schedule". 64 Giving effect to the "in accordance with" phrase in subs 41(2) of the Act as was done in the cases to which I have just referred, one concludes that subs 41(2) of the Act itself lays down a requirement of substantial, rather than strict, compliance with Form 1 of Sch 1 to the Regulations. In those circumstances, it can be seen that s 25C of the Acts Interpretation Act has no potential role to play with respect to that form; s 25C is simply superfluous in the circumstances. 65 After considering subs 41(2) of the Act, one turns next to consider reg 4.02 of the Regulations. In subreg (1) thereof, the delegated legislator performs the task contemplated by subs 41(2) of the Act of prescribing a form of bankruptcy notice. Then, in subreg (2) thereof, he turns his mind to the question, not of the information to be conveyed by such a bankruptcy notice, but rather of the manner of that information's being conveyed by that notice, in other words, the notice's format or layout. As to that, he prescribes, in apparently unequivocal terms, a duty to follow the form's format or layout. Then, mistakenly believing that s 25C of the Acts Interpretation Act has a role to play with respect to that form and being concerned that his apparently unequivocal prescription in subreg (2) of a duty to follow in a bankruptcy notice the format or layout of that form could lead someone considering the question to conclude that he had intended, by enacting subreg (2), to exclude the application of s 25C to that form, he denies the existence of such an intention. 66 The delegated legislator's denial in subreg 4.02(3) of such an intention may be said in one sense to be irrelevant, since s 25C of the Acts Interpretation Act in truth has no role to play so far as the form is concerned. In another sense, however, subreg 4.02(3) may be said to be relevant, at least in so far as it discloses an intention in the delegated legislator not to attempt to impose by subreg 4.02(2) a requirement which has to be strictly complied with. (The use of subreg 4.02(3) in the latter sense may be compared with the High Court of Australia's use in McWaters v Day (1989) 168 CLR 289 at 298-99 (Mason CJ and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) of a statutory provision which it had held in an earlier case to be invalid, in order to infer the Parliament's intention in enacting another, admittedly valid, provision in the same statute.) 67 Of course, even if the delegated legislator had had an intention to attempt to impose by subreg 4.02(2) a requirement which had to be strictly complied with, that intention could not have prevailed, given the fact that, properly construed, subs 41(2) of the Act only requires substantial compliance with the form, a requirement which must extend to questions of format or layout, as well as to questions of content. 68 Thus, even if one were to ignore entirely subreg 4.02(3), one would still have a situation in which, by reason of subs 41(2) of the Act, substantial compliance with the form was all that was required, a requirement compliance with which one would measure by first identifying every respect (if any) in which a bankruptcy notice differed from the form, including so far as its format was concerned, and then asking oneself whether, in light of all such differences as there were, the notice substantially complied with the form. 69 In determining whether the extent of the compliance was or was not substantial, one would adopt the approach to the notion of substantial compliance taken by Burchett J in Re Asset Risk Management Ltd (1995) 59 FCR 254 at 257: "What the Court is concerned with is the practical effect of what has been done, which should be compared with the practical effect the legislature appears to have sought to achieve". 70 That approach was afterwards approved of by Carr J (Lockhart J agreeing (at 358)) in Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 at 395. Carr J also said (at 396), in the context of a statutory provision which directed attention to the question whether other provisions of the same statute which had been contravened had nevertheless been substantially complied with, "[O]ne assesses what has been lost by each respective contravention compared to what would have been if there had been no contravention. Is the difference between the two such that one cannot fairly say that the provision was 'substantially complied with'?" Later in his reasons for judgment, Carr J, having identified certain relevant contraventions, said (at 396), "[M]y view is that, in respect of each relevant provision of the law concerned the practical effect of what has been done substantially equates with the practical effect which the legislature appears to have sought to achieve". 71 Finally, when there are differences between a bankruptcy notice and the form, but, despite those differences, the notice complies substantially with the form, then it cannot be said that that notice contains any potentially invalidating "defect" or "irregularity" within the meaning of subs 306(1) of the Act, so that that provision is simply irrelevant in the circumstances. On the other hand, if the notice does not comply substantially with the form, then subs 306(1) of the Act will be relevant. 72 As I have already mentioned, the above analysis of the issue of the validity of the present bankruptcy notice takes no account of any existing authorities on subregs 4.02(2) and (3) of the Regulations. Most significant among those authorities is the decision of Moore J in Meekin v Commonwealth Bank of Australia [1999] FCA 682 (26 May 1999, unreported). That was a case in which an application was made to set aside a bankruptcy notice on, among other grounds, the ground that some words in it were in bold typeface, although, in Form 1 of Sch 1 to the Regulations, those same words were either in regular typeface simpliciter or in regular typeface with underlining added. At [13] and [14], Moore J said, "There is an unambiguous requirement created by s 41(2) that a bankruptcy notice must be in accordance with the form prescribed by the regulations. However the precise nature of the obligation imposed by that provision has to be determined by reference to the terms in which the form itself is prescribed. Regulation 4.02 prescribes the form. It may be accepted that sub regulation (1) directs attention to Form 1 which is in Schedule 1 to the regulations. However sub regulation (1) has to be viewed in the statutory context in which it appears which plainly includes sub regulations (2) and (3). A distinction is drawn in regulation 4.02 between 'the form' of the notice which is the expression used in sub regulation (1) and 'the format' of the notice which is the expression used in sub regulation (2). In so far as sub regulation (2) requires adoption of the format, that requirement is itself subject to sub regulation (3). In my opinion, the expression 'form' is, in context, a reference to the letters, numbers and symbols used in the form [in] the way they are used to form words, sentences, paragraphs and the like. The word 'format' on the other hand is intended to be an aspect of the form concerning the visual representation of the text found in Form 1. It is visual representation of the type referred to in the parenthesis at the end of sub rule (2) but also includes notes which is text itself. It is clear from regulation 4.02 viewed in its entirety, that the prescription of the form requires that the notice used be in the format identified in Form 1 in Schedule 1 to the regulations but with the qualification that s 25C of the Acts Interpretation Act 1901 might operate in circumstances where there had not been strict compliance with the form. Section 25C provides: Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient. While, as noted earlier, s 41(2) is in unambiguous terms, the actual prescription in reg 4.02 is in terms that contemplates the operation of s 25C in relation to the format. In my opinion, if there is a minor variation between the format of the bankruptcy notice actually used and the format of the bankruptcy notice in Form 1 then that disconformity does not necessarily result in non-compliance with the strictures of s 41(2). In the present case the typing of a limited number of words in bold type where there should have been plain type and the typing of other words in bold which should have been in plain type and underlined is an immaterial disconformity with the format of the prescribed form. It is not a disconformity that leads to the conclusion that s 41(2) was not complied with. It was." 73 I should draw attention now to the fact that Moore J made no reference in the aspect of his reasons for judgment with which I am presently concerned to subs 306(1) of the Act. I infer that that was because he considered that provision to be irrelevant in the circumstances, he having held, in effect, that the bankruptcy notice which he was considering substantially complied with the form. 74 So far as I am able to tell, Moore J's decision in Meekin is the only one in which the issue of the "format" of a bankruptcy notice, so far at least as concerns the typeface used in it, has arisen since the enactment of subreg 4.02(2) of the Regulations. However, for the sake of completeness, I should refer to other decisions of single Judges of this Court in which subregs 4.02(2) and (3) of the Regulations have been discussed in obiter. 75 Before Meekin, in Bank of Melbourne Ltd v Hannan (1997) 78 FCR 249, Northrop J set out the substance of subregs 4.02(2) and (3) of the Regulations and then said (at 252), "Thus despite the use of the word 'must' in reg 4.02(2) strict compliance with Form 1 is not required". 76 After Meekin, in Bendigo Bank Limited v Williams (1999) 168 ALR 175, Goldberg J, although without referring to Meekin, distinguished (at 181-82, [15]) between the format of Form 1 of Sch 1 to the Regulations and its "content … otherwise than in relation to its format" and concluded (at 182, [16]) that, in relation to its format, strict compliance with Form 1 was not required. 77 In Farrugia, which I have already mentioned in par 32 above, Madgwick J referred (at [22]-[23]) to Meekin and, after discussing that decision, said (at [23]) that "as to trivial matters like format, … the Act authorised the Regulations to relax the degree of compliance with a prescribed form that the Act [in subs 41(2)] seems unequivocally to mandate". It is apparent from his earlier remarks both that, when referring to "format" in the passage which I have just quoted, Madgwick J was intending to refer to that concept as used in subreg 4.02(2) of the Regulations and, that, when referring to a "relax[ed] … degree of compliance", he was intending to refer to substantial compliance, as referred to in s 25C of the Acts Interpretation Act. 78 Since I adhere to the view that I should follow a decision of another single Judge of this Court unless satisfied that that decision was plainly wrong and since, further, although Moore J's approach in Meekin differs from the one which I have set out above, I am not satisfied that his decision was plainly wrong, I have decided that I should follow his decision in the present case. I am comforted in doing so by my belief that his approach and the one which I have set out above lead to the same result. That is that, where a bankruptcy notice differs from the prescribed form only in format, one asks oneself in the first instance whether those differences mean that the notice does not comply substantially with the form. If the answer to that question is in the negative, then the notice is not liable to be set aside on the ground of those differences. 79 In the circumstances, I intend to resolve the issue presently under consideration by first asking myself that question. Only if I conclude that the answer to that question is in the affirmative will I consider subs 306(1) of the Act. (Of course, in taking that approach, I am necessarily rejecting Alfred's attempt to persuade me that the issue is to be resolved automatically by the use of subs 306(1) of the Act.) 80 The first question for resolution is, therefore, whether a bankruptcy notice which complies strictly with the form, except in so far as the statement in it, "This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it", is in regular, rather than in bold, typeface, complies substantially with the form. 81 I have concluded that such a notice does not comply substantially with the form. 82 It is apparent that a bankruptcy notice is a most important document, since, assuming it is valid, non-compliance with it by its recipient will amount to an act of bankruptcy and the commission of such an act will expose the recipient of the notice to the legal hazard of suffering the status of a bankrupt. A bankruptcy notice may well be served on an individual unaware beforehand of the potential adverse consequences of his or her non-compliance with it. (Indeed, that appears to me likely to be the usual situation.) It is for that reason, it appears to me, that the delegated legislator has sought in prescribed the form of bankruptcy notice to achieve the practical effect that a person served with a bankruptcy notice will be aware of the potential adverse consequences of his or her of non-compliance with it. An important aspect of the achievement of that practical effect is the statement, which is to follow in the notice immediately after the name and address of the recipient of the notice, "This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it". Also important in the achievement of that practical effect is the fact that such statement is to be in bold typeface. Its being in bold typeface will increase the likelihood of the recipient's focusing on it and absorbing it, whereas, otherwise, the recipient might ignore the entire notice. In my view (and adapting the language used by Carr J in Comcorp), "the practical effect of what has been done" in a notice which does not contain the statement in bold typeface does not"substantially equate[ ] with the practical effect which the legislature['s delegate] appears to have sought to achieve" by prescribing the form which he did. 83 Having decided that the bankruptcy notice served by Frank on Alfred in the present case did not comply substantially with Form 1 in Sch 1 to the Regulations, I next turn, as foreshadowed, to subs 306(1) of the Act. 84 As I understand Kleinwort Benson Australia, the High Court has taken the view in it that the validity of a bankruptcy notice cannot be saved by subs 306(1) of the Act if that notice fails to meet a requirement essential by the Act: see, in particular, at 79. Here, on the approach taken by Moore J in Meekin, the notice fails to meet a requirement made essential, not by the Act itself, but rather by the Acts Interpretation Act, namely, that the notice comply substantially with the form prescribed. However, since the Acts Interpretation Act is a mere "drafting convenience" (see Blue Metal Industries Ltd v Dilley [1970] AC 827 at 848 (JCPC: Lords Morris of Borth-y-Gest, Pearce, Wilberforce, Pearson and Diplock), I can see no justification for not applying the High Court's approach to a requirement made essential by the Act itself in Kleinwort Benson Australia to a requirement made essential by the Acts Interpretation Act. (Of course, on the analysis which I set out above which ignored the existence of Meekin, the requirement that the notice comply substantially with the form prescribed is a requirement made essential by the Act itself, namely, by subs 41(2) thereof; however, as I am adopting the approach taken by Moore J in Meekin, I need not concern myself further with that matter.) 85 In the result, the bankruptcy notice served by Frank on Alfred on 13 October 1999 was invalid and I will therefore order that it be set aside. In the circumstances, I need not consider Alfred's other attacks on the bankruptcy notice which depended on its form and contents. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.