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Adams v Lambert

Adams v Lambert

Case [2004] FCAFC 322 9 December 2004

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FEDERAL COURT OF AUSTRALIA
Adams v Lambert [2004] FCAFC 322
BANKRUPTCY – bankruptcy notice – post-judgment interest claimed under wrong provision of Act – whether distinguishable from case where post-judgment interest claimed under wrong Act – whether error was a failure to meet a requirement made essential by the Bankruptcy Act 1966 (Cth) – inappropriateness of reconsidering majority decision of specially convened five member Full Court.
Acts Interpretation Act 1901 (Cth), s 25C
Bankruptcy Act 1966 (Cth), s 41
AustralianSteel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 followed
Cosco v Tsatsoulis [2002] FCA 358; (2002) 189 ALR 559 referred to
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 applied
Marshall v General Motors Acceptance Corporation Australia (2003) 127 FCR 453 referred to
COLIN ADAMS v REGINALD LAMBERT
No ACD 22 of 2004
COLIN ADAMS v MATTHEW LAMBERT
No ACD 23 of 2004
WHITLAM, FINN & CONTI JJ
SYDNEY (HEARD AT CANBERRA)
9 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 22 OF 2004
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COLIN ADAMS
APPELLANT

AND:

REGINALD LAMBERT
RESPONDENT

JUDGES:

WHITLAM, FINN and CONTI JJ

DATE OF ORDER:

9 DECEMBER 2004

WHERE MADE:

SYDNEY (HEARD AT CANBERRA)

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY
ACD 23 OF 2004
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COLIN ADAMS
APPELLANT

AND:

MATTHEW LAMBERT
RESPONDENT

JUDGES:

WHITLAM, FINN and CONTI JJ

DATE OF ORDER:

9 DECEMBER 2004

WHERE MADE:

SYDNEY (HEARD AT CANBERRA)

THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COLIN ADAMS  ACD 22 OF 2004
APPELLANT

AND:

REGINALD LAMBERT
RESPONDENT

BETWEEN:

COLIN ADAMS  ACD 23 OF 2004
APPELLANT

AND:

MATTHEW LAMBERT
RESPONDENT

JUDGES:

WHITLAM, FINN and CONTI JJ

DATE:

9 DECEMBER 2004

PLACE:

SYDNEY (HEARD AT CANBERRA)

REASONS FOR JUDGMENT
THE COURT

The grounds of appeal in these two matters which have been heard together are scarcely arguable in this Court, though not so in another place. They invite us contrivedly to distinguish, or else to disapprove, the decision of the three judge majority of a five member bench of this Court in Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. The Court in that case was constituted to provide an authoritative determination on a question upon which divergent opinions had been expressed in earlier Full Court decisions. That question related to when an error in, or an omission from, a bankruptcy notice could be said to relate to a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Lambert

Details

AGLC: Adams v Lambert [2004] FCAFC 322
Case: [2004] FCAFC 322
Decision Date: 9 DECEMBER 2004

CaseChat Overview and Summary

In the case of Adams v Lambert, the respondent was indebted to the appellant for a judgment debt of $54,000, along with accrued interest. The respondent's bankruptcy was petitioned for, and the dispute centred around whether the bankruptcy notice was correctly issued. The legal issues involved the accuracy of the interest calculations stated in the bankruptcy notice and whether the omission of the correct interest rate constituted a defect in the notice. The court had to determine if the notice was valid despite the incorrect reference to the interest rate.

The court examined the statutory framework under which the bankruptcy notice was issued, particularly focusing on section 83A of the District Court Act. It was established that the interest had been accruing at the correct daily rate since the judgment date. The court held that the omission of the correct interest rate in the bankruptcy notice did not render the notice invalid, as the respondent was not misled by the error. The respondent's argument that the notice was defective due to the incorrect reference lacked merit, and the appeal was dismissed.

The court's reasoning was that the omission of the correct interest rate in the notice did not constitute a fundamental defect, as the respondent was fully aware of the debt and the interest accruing thereon. The interest, as stated in the notice, was sufficient to satisfy the requirements of the Act, and the error did not prejudice the respondent. The court found that the appeal was without merit and dismissed it with costs.

ORDERS:
1. The appeal be dismissed with costs.

Orders

Orders of the court

1. The appeal be dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As is apparent from the reasons of the judgment below and from our reasons, the respondent’s case is without substantive merit. There is no dispute that the respondent is indebted to the appellant for the judgment debt of $54,000 and for the accrued interest thereon stated in the bankruptcy notice at that stage merely of $66.58. Interest has in reality been accruing in favour of the appellant since the judgment at the daily rate of $13.32, and is by now relatively sizable in quantification. Had the appellant omitted any reference at all to the interest component, there would have been no answer to the appellant’s petition for bankruptcy, since doubtless there would have been no reference to s 83A of the District Court Act. The respondent does not of course suggest that he was actually misled by anything appearing in the bankruptcy notice, including that mistaken reference. The matter requires legislative attention.3. CONCLUSION The appeal in each matter must be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Adams v Lambert [2004] FCAFC 322

Most Recent Citation

Shannon and Middleton v King [2005] FMCA 1264

Cases citing this decision · 3 of 3 shown

Adams v Lambert
[2006] HCA 10 Para 3

…t from the decision of Gyles J was dismissed[4]. [1] Adams v Lambert [2004] FCA 928. [2](2000) 109 FCR 33. [3](2003) 127 FCR 453. [4] Adams v Lambert [2004] FCAFC 322.…
The Drink Nightclub v Worchild
[2005] FMCA 1454 Para 13

…mple, the decisions of the Full Court of the Federal Court in Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109 and Adams v Lambert (2004) FCAFC 322…
Shannon and Middleton v King
[2005] FMCA 1264 Para 13

…example, the decisions of the Full Court of the Federal Court in Marshall v General Motors Acceptance Corporation Australia (2003) 199 ALR 109 and Adams v Lambert (2004) FCAFC 322…

View all 3 citing cases →

Cases cited in this decision · 9 of 9 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 1

…distinguish, or else to disapprove, the decision of the three judge majority of a five member bench of this Court in Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. The Court in that case was constituted to provide an authoritative determination on a question upon which divergent opinions had been exp…
Marshall v General Motors Acceptance Corporation Australia
[2003] FCAFC 45

…owed Cosco v Tsatsoulis [2002] FCA 358; (2002) 189 ALR 559 referred to Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 applied Marshall v General Motors Acceptance Corporation Australia (2003) 127 FCR 453 referred to COLIN ADAMS v REGINALD LAMBERT No ACD 22 of 2004 COLIN ADAMS v MATTHEW LAMBERT No ACD 23 of 2004 WHITLAM, FINN & CONTI JJ SYDNEY (HEARD…
Cosco v Tsatsoulis
[2002] FCA 358

…(Cth), s 25C Bankruptcy Act 1966 (Cth), s 41 Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 followed Cosco v Tsatsoulis [2002] FCA 358; (2002) 189 ALR 559 referred to Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 applied Marshall v General Motors Acceptance Corporation Australia…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 1

…else to disapprove, the decision of the three judge majority of a five member bench of this Court in Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33. The Court in that case was constituted to provide an authoritative determination on a question upon which divergent opinions had been expressed in e…
EMCL Pty Ltd v ESANDA Finance Corp Ltd
[1999] FCA 978 Para 8

…r the payment of money. The applicable interest rate can often be a matter of dispute: see, for example, EMCL Pty Ltd v Esanda Finance Corp Ltd [1999] FCA 978 at [58] et seq. That case dealt with the different issue of an award of interest by a court at the time of judgment, but it illustrates the potential for c…
Kleinwort Benson Australia Ltd v Crowl
[1988] HCA 34

…stralian Steel Co (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 followed Cosco v Tsatsoulis [2002] FCA 358; (2002) 189 ALR 559 referred to Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 applied Marshall v General Motors Acceptance Corporation Australia (2003) 127 FCR 453 referred to COLIN ADAMS v REGINALD LAMBERT No ACD 22 of 2004 C…
James v Federal Commissioner of Taxation
[1955] HCA 75 Para 6

…by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v Commissioner of Taxation (Cth) (1955) 93 CLR 631 at 644, Pillai v Comptroller of Income Tax [1970] AC 1124 at 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: Re…
[1970] AC 1124
[1970] AC 1124 Para 6

…what is necessary to comply with the notice: James v Commissioner of Taxation (Cth) (1955) 93 CLR 631 at 644, Pillai v Comptroller of Income Tax [1970] AC 1124 at 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: Re a Judgment Debtor [1908] 2 KB 474 at 481.”…
[1908] 2 KB 474
[1908] 2 KB 474 Para 6

…ler of Income Tax [1970] AC 1124 at 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: Re a Judgment Debtor [1908] 2 KB 474 at 481.”…

Legislation cited in this decision · 3

Acts Interpretation Act 1901 (Cth)
25C 2 mentions (from Para 9)
Bankruptcy Act 1966 (Cth)
41 2 mentions (from Para 6)
District Court Act 1974 (NSW)
1 mention (from Para 2)

BETWEEN:	COLIN ADAMS APPELLANT
AND:	REGINALD LAMBERT RESPONDENT
JUDGES:	WHITLAM, FINN and CONTI JJ
DATE OF ORDER:	9 DECEMBER 2004
WHERE MADE:	SYDNEY (HEARD AT CANBERRA)

BETWEEN:	COLIN ADAMS ACD 22 OF 2004 APPELLANT
AND:	REGINALD LAMBERT RESPONDENT

BETWEEN:	COLIN ADAMS ACD 23 OF 2004 APPELLANT
AND:	MATTHEW LAMBERT RESPONDENT

JUDGES:	WHITLAM, FINN and CONTI JJ
DATE:	9 DECEMBER 2004
PLACE:	SYDNEY (HEARD AT CANBERRA)