Re Williams, Louis K. Ex Parte McCourt, Robert John & Anor [1983] FCA 281

Federal Court of Australia|1983-07-01

Bankruptcy - Bankruptcy notice - Application for dismissal of creditors' petition -dismissal by consent - Application for costs - Whether notice which incorrectly states name of court to whom debtor may apply to set aside notice if he has counter claim fundamentally defective - Validity of notice ~ Whether

Re Louis K. Williams; Ex parte Robert John McCourt and William Geoffrey Halliday

EX PARTE: ROBERT JOHN McCOURT AND WILLIAM GEOFFREY HALLIDAY

The debt of the petitioning creditors in this matter has now been paid. The petitioners thus seek the dismissal of the petition and an order that the debtor pay their costs. The debtor claims that the bankruptcy notice grounding the petition 1s bad and whilst he urges the dismissal of the petition, he contests any liability for costs. Another creditor has fore- shadowed an application to be substituted as petitioner in the

The bankruptcy notice here required the debtor to secure the payment of the debt to the satisfaction of the Court of Petty Sessions and to satisfy the Court of Petty Sessions that he had a counter-claim, set-off or cross demand instead of referring to this Court in this connection. The references

to the wrong court is said to render the bankruptcy notice invalid.

Act") provides that with the prescribed requires the debtor accordance with the to the satisfaction compound the sum to

a bankruptcy notice shall be in accordance form which shall be such that the notice named in it to pay the judgment debt in judgment or secure the payment of the debt of "the Court" or the judgment creditor or the satisfaction of the creditor. Likewise,

demand, speaks of the satisfaction of "the Court" in this

' in paragraph (a) to the satisfaction of the (name of the Court) or the judgment creditor or compound the sum so specified to the sat- isfaction of the judgment creditor. ...

AND FURTHER TAKE NOTICE that if, within the period set out above, you fail either to comply with either of the abovementioned requirements in this notice or to satisfy the (here insert the name of the Court) that you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in

demand that you could not have set up in the action in which the judgment was obtained, you will have

It is clear that strict compliance with the stat- utory requisites of a bankruptcy notice 1s essential to its validity and, in this respect, a bankruptcy notice is strictly

construed: (see James v. Federal Commissioner of Taxation

(1955) 93 C.L.R. 631 at 644). However, the petitioning creditor argues that the particular defect in the bankruptcy notice is merely one of form and not of substance so that by the operation of s.306 of the Act, the defect does not invalidate

The test to be applied in determining whether a defect in a bankruptcy notice constitutes a formal defect or an irreg- ularity within the meaning of s.306 1s that if the defect in the notice 1s of such a kind as could reasonably mislead a debtor upon whom it is served, it invalidates the notice not- withstanding that the particular debtor upon whom it was served

was not in fact misled (see Pillai v. Comptroller of Income Tax

(1970) A.c. 1124 at p.1135; Re a Debtor (No.21 of 1950):

In Re a Debtor; Ex parte Debtor v. Bowmaker Ltd. (1951) Ch.313;

In Re Wimborne; Ex parte the Debtor (1979) 24 A.L.R.

494 at p.499, Lockhart, J. stated that the test is not whether the debtor was in fact misled by the defect. It is sufficient

"It is clear from the cases to which I have referred that although the courts drew a definite distinc- tion between the possibility of the debtor being misled and the question whether he was misled in fact, the latter being an impermissible field of inquiry, it is the capacity of the bankruptcy notice to mislead the debtor to whom the notice is directed that matters, not some hypothetical debtor."

This view was also taken by Sheppard, J. in Re Preston; Ex parte The Commercial Bank of Australia Limited (13 October,

In Re_a Debtor (No. 21 of 1950); Ex parte The Debtor

v. Bowmaker Ltd. (1951) Ch. 313 the copy of the bankruptcy notice served on the debtor was headed in the name of a county court from which it was not issued, namely "Redhill County Court" though bearing the seal of the court from which it was in fact issued, namely "Windsor County Court". It was held that this was a defect which could have misled the debtor and thus was not curable by s.147 of the Bankruptcy Act, 1914 and that the notice

"IT am to ask.myself, therefore, not whether this is a mistake which has misled the debtor, but whether it could misiead him.

The bankruptcy notice is in the common form, and it tells the debtor that he must pay a certain sum to Bowmaker Ld., or their solicitors, or that he must secure or compound for the said sum to their satis- faction, or to the satisfaction of their said agent, or to the satisfaction of this court, or that he must satisfy this court that he had a counterclaim, set-off or cross-demand against them. The debtor has three days in which to do that. He is told 'this court'. When he looks at the notice, he may take his choice, whether it is the Redhill court

ra wrong court and went to Redhill at the end of the third day with, say, an affidavit to prove that he had a good set-off. He might find that he had gone to the wrong place and could not get to Windsor that day, so that when he arrived at Windsor, he would be told that he was too late because the three days had expired. It cannot be said that the debtor is not embarrassed by this notice. According to the authorities, therefore, I feel myself constrained to hold that this is not an irregularity which we can overlook."

In my opinion, this reasoning should be applied in the present case. In the result, the bankruptcy notice is

appeared in person, there should be no order as to costs.

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Judgment (32 paragraphs)