Walsh v Deputy Commissioner of Taxation

High Court of Australia|1984-07-01|Before: Dawson JJ, Lockhart J

High Court of Australia Gibbs C.J. Mason, Brennan, Deane and Dawson JJ. Walsh v Deputy Commissioner of Taxation [1984] HCA 33

This is an appeal from a judgment of the Full Court of the Federal Court [1] which affirmed a judgment of Lockhart J. [2] dismissing an application to set aside a bankruptcy notice.

(1983) 47 A.L.R. 616; 83 A.T.C. 4,375. 2. (1982) 65 F.L.R. 87; 42 A.L.R. 727; 13 A.T.R. 40; 83 A.T.C. 4,130.

There is no doubt that a bankruptcy notice will be invalid if the sum specified in the notice as the amount due to the creditor exceeds the amount for which the creditor is entitled to issue execution, provided that the debtor gives timely notice under s. 41(5) of the Bankruptcy Act 1966 Cth, as amended, that he disputes the validity of the notice on that ground. What has to be decided, however, is whether the inquiry as to whether the notice overstates the amount due is to be made at the time of the issue of the notice or at the time of its service. This question does not seem ever to have been distinctly decided and in the cases to which we have been referred it did not fall for decision, either because the notice was erroneous if viewed at either date, or because the dates of service and issue were the same.

The authorities speak indifferently on the question. Sometimes it is said that a bankruptcy notice cannot issue for a larger sum than that for which execution could issue: see, e.g., In re Miller; Ex parte Furniture and Fine Arts Depositories Ltd. [3] , and Re Murray [4] . Sometimes it is suggested that the date of service is critical: see Re a Debtor [5] . Sometimes reference is made to both dates: see In re Follows; Ex parte Follows [6] . In one case the date of service is mentioned as the relevant date in one report of the decision and the date of issue in others: see In re Child; Ex parte Child [7] .

[1912] 3 K.B. 1, at pp. 3, 4-5. 2. (1959) 18 A.B.C. 152, at pp. 154-155. 3. [1912] 3 K.B. 242, at p. 246. 4. [1895] 2 Q.B. 521, at p. 524. 5. [1892] 2 Q.B. 77, at pp. 79-80; cf. the report in 9 Morr. 103, at p. 106.

A bankruptcy notice is a document issued by the registrar, under statutory authority: see s. 41(1) of the Bankruptcy Act. Normally, therefore, it would be expected that the validity of the notice should be tested as at the date of its issue. The prescribed form of notice bears a date and the notice itself states that the judgment creditor "has claimed that [the specified sum] is due by you to him". In form the notice speaks as at the date which it bears, that is the date of its issue, and although service is essential to make non-compliance an act of bankruptcy, and although the time fixed for compliance runs from the date of service, the notice must be understood as speaking as at the date of its issue and the requirements of the notice, for the purposes of s. 40(1)(g) of the Bankruptcy Act, must be ascertained in that context. This reinforces the view that the amount which must be correctly stated is the amount of the judgment debt owing at the date of issue. This conclusion is satisfactory from a practical point of view since it is ordinarily within the knowledge of the debtor whether or not any payments have been made since the issue of the notice and the ability to invalidate a notice on the ground that payments were subsequently made opens the way to evasion.

Although the notice in form requires payment to be made after service it is apparent that a payment made before service, but after the issue of the notice, must be taken into account in deciding whether there has been a compliance with the requirements of the notice under s. 40(1)(g).

For these reasons the Federal Court was right in holding that the bankruptcy notice in the present case was a valid one. I would dismiss the appeal.

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