RE: WALLACE ALLAN TERRY; JOYCE TERRY v MAXWELL WILLIAM PRENTICE

Federal Court of Australia|1994-12-09|Before: Lindgren J

In this matter I gave a judgment on 2 December 1994 and the only matter to be determined today is that of costs. JI will not repedt, but I will take as read, my Reasons for Judgment dated

It suffices for present purposes to say that by her application filed on 15 November 1994, the applicant, Joyce Terry ("Mrs Terry"), the wife of the bankrupt, Wallace Allan Terry, applied for an order setting aside a notice dated 3 November 1994 from Robert John Cruickshanks, Acting Official Receiver addressed to her purportedly issued under s 77C of the Bankruptcy Act 1966

It was necessary for the proceedings to be commenced, in particular, because Mrs Terry was subject to penalties, indeed heavy penalties, for non-compliance with a valid notice issued under s 77C of the Act. I referred to these in my judgment delivered on 2 December 1994. Non-compliance with a valid notice

I think it appropriate that there be an order in favour of Mrs Terry but only as to 50 per cent of her costs. This reflects the fact that Mrs Terry failed as to one of the two distinct issues argued on the hearing. The view which I have expressed is one which I had formed as a result of reading and considering the parties' written submissions. It happens to coincide with a submission made this morning orally on behalf of Mrs Terry

(though not with the written submissions made on her behalf).

The more difficult question is to determine how, as between the respondents, the half of Mrs Terry's costs which I have awarded to her should be borne. The first respondent ("the Trustee"),

requested the second respondent ("the Official Receiver") to

issue the notice. There has been tendered on behalf of the Trustee the form of request. The Official Receiver issued the notice in a form which differed from that which had been requested. The form of notice as issued was narrower than that which had been requested, although still not in an appropriate form. That the Trustee requested a notice in a broader form does

It is by virtue of the Official Receiver's having lent his name to the notice that the potentiality for penalties arises and for this reason the Official Receiver should, in my view, bear some

On the other hand it is clear that the party taking the initiative was the Trustee. It has been submitted for the Official Receiver that there should be an order for costs in his favour. I reject that submission. He issued a notice which was,

I think that the appropriate order is that as between themselves the Trustee bear two-thirds of those costs which I have ordered in favour of Mrs Terry and that the Official Receiver bear one-

third of those costs which I have ordered in favour of Mrs Terry.

I should add that I appreciate that the provision in relation to notices of the kind in question was introduced by Act No 9 of

1992 and on one view it is perhaps understandable that a

familiarity with the section and its requirements might take some time to develop, although of course cases on generally similar

When an Act of Parliament authorises the issue of a notice, non- compliance with which is a punishable offence, it behoves all those who invoke the provision to have due regard to the

interests of the person or persons to whom such a notice is

directed. I certify that this and the preceding 3 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate: YY LB, S/N we Dated: 23 December 1994 Heard: 9 December 1994 Place: Sydney Decision: 9 December 1994

Appearances: Mr M R Aldridge of counsel instructed by P W Turk & Associates appeared for the applicant.

Mr A Armstrong of Holmes & Bevan appeared for the Official Trustee.

Miss S Nash of Sally Nash & Co appeared for the Official Receiver.

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Judgment (22 paragraphs)

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