Thompson v Metham

REASONS FOR JUDGMENT 1 On two grounds, Mr Alan Thompson ("the debtor") disputes the validity of a purported bankruptcy notice ("the notice") served on him by Mr Brian Roger Metham ("the creditor") on 6 March 1999. 2 The first ground of invalidity alleged by the debtor is that the notice was not in the required form. I set out immediately below the three statutory provisions on which reliance is placed in making that allegation. 3 First, subs 41(2) of the Bankruptcy Act 1966 (Cth) ("the Act") provides, "The [bankruptcy] notice must be in accordance with the form prescribed by the regulations". 4 Secondly, subreg 4.02(1) of the Bankruptcy Regulations (Cth) ("the Regulations") provides, "For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Form 1 is prescribed". (The reference in subreg 4.02(1) of the Regulations to "Form 1" is a reference to Form 1 in Sch 1 to the Regulations: see subreg 1.03(2) of the Regulations.) 5 Thirdly, Form 1 in Sch 1 to the Regulations relevantly provides for the inclusion within a bankruptcy notice of the words, "A copy of the judgment … relied upon by the creditor is attached". 6 The disputed notice bore the date 14 January 1999 and claimed that the debtor owed the creditor $29,627.66. That sum was said in the Schedule to the notice to be comprised of $24,712, being the amount of a judgment, and $4,915.66, being the amount of interest accrued on the judgment debt since the date of judgment. 7 In a document attached to the notice, dealing with the amount of interest accrued, details were given of the calculation of the sum of $4,915.66. That document also included the following three statements: "Judgement [sic] was entered against Alan Thompson in the District Court of New South Wales, at Sydney on 26th January 1997 for the sum of $24,712.00. A certified copy of the Judgment made [sic] in the District Court, Sydney is attached. Interest is being claimed for the period from 26th January 1997 until 13th January 1999." 8 Of those three statements, only the third of them was true; the first and second of them were false. 9 A second document attached to the notice, asserted by the creditor in the first attached document to be a certified copy of the District Court's judgment of 26 January 1997 against the debtor in the sum of $24,712, read in its entirety as follows: "IN THE DISTRICT COURT OF NEW SOUTH WALES AT SYDNEY No. 13844 of 1990 BETWEEN Brian Roger METHAM (Plaintiff) AND Alan Thompson (Defendant) JUDGMENT 26th January, 1997 It is this adjudged [sic] that: 1. That [sic] the plaintiff recover against the defendant $24,712.00 on his claim and the question of costs reserved. 2. The defendant pay $24,712.00 to the plaintiff forthwith. 3. On delivery to the plaintiff within 28 days at the plaintiff's current residential address, or such other address within the Sydney metropolitan area, as directed by the plaintiff, at the defendant's expense, and acceptance by the plaintiff of the Narwee tables on or before 23rd February, 1997, the judgment debt shall be deemed to be satisfied to the extent of $14,000.00. Dated: 20th March, 1997. By the Court, Assistant Registrar." 10 The original of the disputed notice was in evidence before me and I have examined the second document attached to it, the terms of which document I have just set out. It is a photocopied document, bearing an indecipherable signature above the words "Assistant Registrar". I have found it impossible to be satisfied as a result of my examination of the photocopy that the original bore the District Court's seal, although Pt 1, r 6, of the District Court Rules, 1973 (NSW) provides relevantly that a registrar shall seal or stamp with the seal of the Court any certificate or copy of a judgment issued by him. The debtor does not dispute that the original of the document was signed by an Assistant Registrar of the District Court. However, what the document's effect was is another question. 11 Contrary to the second of the three statements which I have quoted in par 7 above, the Assistant Registrar's document plainly was not (nor did it even purport to be) a certified copy of a judgment which had actually been given by Tapsell ADCJ in January 1997, to which judgment I will later refer. (The form of a certified copy of a District Court judgment can be found in Form 66 of the District Court Forms (NSW).) Nor did the Assistant Registrar's document comply, even substantially, with Form 64 of those Forms, which form prescribes a form of certificate of judgment as follows: "CERTIFICATE OF JUDGMENT I, E.F., Registrar of the District Court of New South Wales for (place), being the officer having ordinarily the custody of the records, documents, proceedings and minutes of the Court at that place, do hereby certify that:-