Alan Morrow v K.A. Reed (Group) Pty Ltd
[1985] FCA 353
•30 JULY 1985
Re: ALAN MORROW
Ex Parte: K.A. REED (GROUP) PTY LTD
No. P 1056 of 1984
Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF
THE STATE OF VICTORIA
Woodward J.
CATCHWORDS
Bankruptcy - service of bankruptcy notice - conflicting evidence of date of service - creditor's petition - power of court to go behind judgment - whether judgment obtained by fraud - error in heading of summons on which bankruptcy notice founded - misdescription of court from which summons issued - whether error amounts to an irregularity or renders summons a nullity.
Bankruptcy Act 1966 (C'th) s.40
Magistrates' (Summary Proceedings) Act 1975 (Vic) ss.8,9,94,157
HEARING
MELBOURNE
#DATE 30:7:1985
ORDER
1. Upon the petitioning creditor filing fresh affidavits
(a) made by a person who has searched in the indexes kept by the Registrar stating whether any bankruptcy proceedings in the District are pending against the debtor or whether the debtor is a bankrupt; and
(b) made by a person who has knowledge of the facts stating that the debt on which the petitioning creditor relies is still owing,
there will be an order of sequestration against the estate of the debtor, the act of bankruptcy being the failure of the debtor to comply with the provisions of a bankruptcy notice on on before 7 August 1984.
2. Costs, including all reserved costs, will be in accordance with the statute.
(Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.)
JUDGE1
This creditor's petition for a sequestration order has a rather protracted history. A bankruptcy notice, naming Alan Morrow ("the debtor") as the judgment debtor and K.A. Reed (Group) Pty Limited ("the petitioner") as judgment creditor, was issued by a Deputy Registrar of this Court on 3 July 1984. The notice alleged that a judgment in the sum of $3860.90 on a claim for work and labour done had been obtained by the petitioner against the debtor on 23 February 1984 in the Magistrates' Court at Collingwood. An affidavit of personal service of the bankruptcy notice was sworn by David Sebastian Manville-Smythe on 29 August 1984, and was filed on 22 November 1984. In that affidavit, to which I will refer in greater detail later, the deponent swears to serving the debtor with a copy of the bankruptcy notice on 24 July 1984.
On 9 August 1984 the debtor filed an affidavit drawn by himself, setting out in detail a number of matters relating to the Magistrates' Court order, including details of service of the original default summons, steps taken by both parties throughout that action, and details of the hearing on 23 February 1984. Paragraph 18 of that affidavit stated:
"I have a valid and lawful counter-claim against K.A. Reed (Group) Pty Ltd for breach of contract in the sum of $100,000 in that the said K.A. Reed
(Group) Pty Ltd failed to (a) follow the specifications given to them, and (b) failed to complete the work, and (c) failed to do satisfactory work, and (d) failed in their work to meet the requirements of the relevant building code."
The debtor obviously had in mind the provisions of s.40(1)(g) of the Bankruptcy Act 1966 ("the Act") when preparing and filing that affidavit. That section states that a debtor has not commited an act of bankruptcy if within the relevant time fixed by the bankruptcy notice he has satisfied the Court;
"that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he could not have set up in the action or proceeding in which the judgment or order was obtained".
Subsequently a date was fixed in this Court for the determination of the matters raised in the debtor's affidavit. On that day, the debtor appeared unrepresented before Sweeney J. Despite his Honour then, and myself on subsequent occasions, pointing out to the debtor the complex and technical nature of bankruptcy proceedings, the debtor remained unrepresented until the final day on which this matter came before me.
In the event, Sweeney J. did not find it necessary to decide whether the debtor had a counter-claim, set-off or cross demand under s.40(1)(g), as the affidavit on which the debtor relied had been filed on 9 August 1984, outside the fourteen day period specified in the bankruptcy notice. His Honour relied on the affidavit sworn by Mr Manville-Smythe to determine the date of service of that notice.
The petition then came before me on 11 February 1985. On that day the debtor sought an order that the petitioner give discovery pursuant to a notice for discovery he had filed and served. I refused that application. Counsel for the petitioner then commenced presentation of those matters required to be proved under the Act for the granting of a sequestration order. Two irregularities appeared in the formal proofs. A very minor discrepancy in the judgment sum as claimed in the default summons in the Magistrates' Court and as set out in paragraph two of the creditor's petition was brought to my attention. I granted leave to the petitioner to amend the petition accordingly. It then became apparent that an official copy of the petition had not been annexed to the affidavit of service of the petition as required by rule 16(b) of the Bankruptcy Rules. The petition had also been served by Mr Manville-Smythe. The petitioner then sought and was granted an adjournment for eight days to allow Mr Manville-Smythe to give vive voce evidence.
On 19 February 1985 the matter again came before Sweeney J, who ordered that it be called-over on 26 April 1985. On that day it was fixed for further hearing before me on 2 May 1985. At that hearing, where all issues were dealt with afresh, Mr Manville-Smythe was called to give evidence as to service of both the creditor's petition and the bankruptcy notice, and a further minor amendment of the judgment sum specified in the petition was allowed, so that it coincided with the certificate of judgment on the court file. The petitioner then completed formal proofs including verification of paragraphs 1, 2 and 3 of the creditor's petition by Mr Prosser, who both swore an affidavit and gave evidence, and of paragraph 4 of the petition by Miss Lewin by affidavit. However, the matter was further adjourned to 6 May 1985 at the request of the debtor, to allow him to call a witness, a Mr Brizzi, to give evidence as to the date of service of the bankruptcy notice. That evidence was given, but the matter was then further adjourned to 9 May 1985 to enable the petitioner to consider and put to me submissions on a point of law raised for the first time by the debtor on 6 May 1985, relating to the court from which the original default summons had been issued. In addition, the petitioner sought and was granted leave to call a further witness on the issue of the date of service of the bankruptcy notice.
Unfortunately the debtor became ill, and was unable to attend on 9 May 1985 and only briefly appeared upon the adjournment to 13 May 1985. This necessitated a further hearing on 24 May 1985. In the interim, the debtor had sought legal representation, and was represented on that day by Mr Franzi of counsel. Two further witnesses were called by the petitioner and were briefly cross-examined. In addition brief legal submissions were made then. However Mr Franzi was granted leave to deliver to me a further written submission within 14 days. That document was received by me on 10 June 1985, and a written submission in reply prepared by counsel for the petitioner was received on 2 July 1985. I have carefully considered the matters raised in those submissions, and the matters raised in the evidence and oral argument in the various hearings before me, and have now reached a firm conclusion.
The debtor has raised many matters, but his counsel has identified three principle arguments against the granting of a sequestration order. I will deal with each separately.
A. SERVICE OF THE BANKRUPTCY NOTICEThe debtor alleges that he was served with the bankruptcy notice on Friday, 27 July 1984, and not on Tuesday, 24 July 1984 as is sworn to by Mr Manville-Smythe. In support of that contention, he himself gave evidence of receiving the bankruptcy notice from Mr Manville-Smythe on 27 July 1984. He swore that
"in less than 30 seconds after receiving the notice, going past the phone table in my passageway, I wrote the date and initialled it on the bottom of the bankruptcy notice."
He then produced the original bankruptcy notice which bears the notation "served 27/7/84" and initials on the bottom left corner. It is worth noting that the original creditor's petition produced by the debtor also bears a similar notation as to service.
In addition, the debtor swore that the witness Brizzi was present at the time of service. When Mr Brizzi gave evidence, he swore to being present at the debtor's home in Prahan when documents were served on the debtor. When questioned as to the date, he immediately replied "27 July". He also recalled the debtor "writing something on the teledex" after receiving the documents. He explained his ability to recall the date by referring to a meeting he held with his former wife outside the Melbourne Magistrates' Court. He remembered this took place on the afternoon of the day he witnessed the service of the documents. He stated that the meeting with his former wife had been arranged on the Wednesday, and that he had entered the appointment for the Friday in his diary. He also stated that upon being requested by the debtor to give evidence on this matter, he checked his diary to ascertain the date of the meeting, which by inference gave him the date of the service of the documents.
On the other hand, Mr Manville-Smythe, a process server for the Network Process Service agency ("Network"), gave contradictory evidence. Other than by referring to his affidavit of service, he could not independently recall the day or date of service on the debtor. However, in addition to his affidavit, he produced a document from the file of Network, which he had prepared, and which stated the date of service as 24 July 1984. He explained that that document, which bore his signature, would have been returned by him to Network shortly after effecting service. From either that document, or from what is apparently a separate document which Mr Manville-Smythe referred to as his "original work sheet", an invoice or "card index sheet" was typed by personnel at Network's office. The original invoice (which apparently had been sent to the petitioner's solicitors) was produced and also confirms the date of service as 24 July 1985.
In addition, Mr Manville-Smythe produced a document entitled "Affidavit of Attempted Service" which is printed on Network's letterhead. That document states that Mr Manville-Smythe unsuccessfully attempted service of a document or documents on the debtor on 23 July 1984 at 5.25 p.m. That affidavit was sworn on 26 July 1984 and bears Mr Manville-Smythe's signature, as well as a stamped signature of Mr Candy, the Manager of Network. Mr Manville-Smythe stated that he would have attended the Network office to swear the affidavit of service on the same day as he returned the work sheet showing that service had been effected. He told the Court that as he would not be paid for an attempted service only, there would have been no point in returning the document or swearing an affidavit of attempt until the job had been completed. Thus he could not have served the bankruptcy notice the day after he swore the affidavit of attempted service.
Mr Manville-Smythe's evidence was supported by Mr Candy, who produced a number of documents. The first, a sheet bearing Mr Manville-Smythe's stamp and the stamped date of 26 July 1984, listed the names of complainants and defendants in proceedings, and amounts claimed by Mr Manville-Smythe for service. One line refers to a fee of $10.00 for service in the matter of "Reed-Morrow". This sheet had also been crossed with a red ink line and the notation "Pd 26/7/84". The total service fee due to Mr Manville-Smythe as indicated by that sheet and two other similar sheets stamped "24 July 1984" was $245.00. Mr Candy also produced a copy of a Network cheque butt no. 583115 showing payment of $245.00 to Mr D Smythe on 26/7/84 and a Network bank statement from the National Australia Bank showing the presentation of cheque no. 583115 in the sum of $245.00 on 26 July 1985. That evidence strongly supports Mr Manville-Smythe's assertion that he received payment for service on the debtor, both actual and attempted, on 26 July 1985.
That evidence, together with the strong presumption that Mr Manville-Smythe, a professional process server, would have no motive for fabricating the date of service, leads me to the firm conclusion that service of the bankruptcy notice was effected on the debtor on 24 July 1984, and not on 27 July 1984. I found Mr Brizzi an unconvincing witness, and his diary, which might have supported one part of his evidence, was not produced. In addition, the debtor claimed, in a statement from the bar table, to have a "full TV tape" of his meeting with Mr Manville-Smythe on 27 July 1984 as alleged. He said that the tape had been stolen in a burglary. Although neither Mr Brizzi nor Mr Manville-Smythe was directly questioned about this video tape, neither mentioned it in their evidence concerning the service of the document. Mr Brizzi was asked what did occur, and gave a relatively detailed version without mentioning the taping. I think that it is highly unlikely that such a taping took place, which in turn leads me to doubt the debtor's general reliability and tends to confirm the particular unreliability of his evidence as to the date of service. Accordingly, I find that service of the bankruptcy notice was effected on 24 July 1985, and that no affidavit of counter-claim, set-off or cross demand was filed by the debtor within fourteen days of the date of service.
B. VALIDITY OF THE JUDGMENT DEBTThe debtor argues that the judgment obtained against him in the Magistrates' Court cannot support the granting of a sequestration order, as the petitioner has failed to perform acts that the debtor asserts were conditions of the settlement that led to the consent order.
The petitioner's claim in the Magistrates' Court was for monies owing for architectural services rendered pursuant to a building contract. It appears that the debtor was not satisfied with the work performed by the petitioner, and issued a counter-claim. After negotiations at the door of the court, he agreed to pay close to the full amount claimed by the petitioner and consented to an order against him on the claim in the sum of $2,960.00 with $900.00 costs. A stay of execution of one month was agreed. However, the debtor says that his agreement to pay the monies owing was conditional upon the petitioner agreeing to complete certain unfinished work within fourteen days. This, the debtor says, has not been done. The undertaking to complete the work was allegedly made by Mr Catt, a representative of the petitioner, who was present at the Magistrates' Court on the day of the hearing. The debtor said in evidence
"There is absolutely no way that I would back down from my position of the claim against K.A. Reed
(Group) to complete their work. I would have agreed to dropping the counter-claim upon completion of the work, but under no other circumstances."
The petitioner denies that any such undertaking was given or agreement reached. It says it did not, and would not, agree to carry out any further work for the debtor. In support it called Mr Whelan, the barrister who appeared for the petitioner in the Magistrates' Court proceedings. He gave evidence of discussions that took place between himself, the debtor and Mr Catt on the morning of the hearing. He recalled being concerned to explain clearly to the debtor the petitioner's position and the terms of the settlement, as the debtor appeared in person and at one stage of the negotiations appeared to have a misconception about further work that might be performed. Mr Whelan was adamant that he and Mr Catt made it clear to the debtor that the payment of the money owing was to settle all disputes then outstanding between the parties, and that the petitioner was under no obligation to carry out any further work for the debtor. He produced his brief back-sheet that bore notes supporting that position, including the notation "settlement was on the basis that:
A. all disputes between Reed and Morrow were now terminated.
B. any further work required by Morrow would need to be re-negotiated and Reed were under no obligation to accept further instructions."
Mr Whelan believed the debtor understood the terms of settlement and understood also that no further work would be performed without a fresh agreement being entered into. His evidence was corroborated generally by Mr Catt.
It is clear that a Bankruptcy Court hearing a creditor's petition has the power to go behind a judgment to determine if in fact there was a debt owing on which a bankruptcy notice could be founded (See Corney v Brien (1951) 84 CLR 343, Wren v Mahoney (1972) 126 CLR 212, Re Pinkerton; Ex parte B. G. Textiles Pty. Ltd. (In Liquidation), an unreported decision of Wilcox J. of 4 October 1984, and the discussion at (1973) 47 ALJ 377). If there is clear evidence that a judgment was obtained by fraud, collusion or miscarriage of justice, or that the original court had no jurisdiction to hear the matter, there may be justification for refusing to grant a sequestration order. However the evidence in this case fails to establish the fraud or breach of faith which the debtor relies upon in seeking to go behind the judgment by consent. It is possible that some confusion may now exist in the debtor's mind over the terms of the settlement. But in view of his willingness to fabricate evidence about the date of service of the bankruptcy notice - which follows from the findings I have made on that issue - I have no reason to doubt the evidence of Mr Whelan and Mr Catt. Accordingly I am satisfied that the consent order obtained against the debtor is sufficient to support the bankruptcy notice and the granting of a sequestration order.
However, the debtor raises a further argument in relation to the judgment debt.
The Magistrates' Court default summons, which commenced the proceedings which ultimately led to the consent orders on which the bankruptcy notice was founded, bore the heading "In the Magistrates' Court at Prahran." The first five words were printed on the original form, the last being typed in by the solicitors for the complainant, which is the petitioner in the bankruptcy proceedings.
The printed form then read;
"Whereas a complaint has this day been made to the Clerk of the above-mentioned Magistrates' Court in respect of a cause of action for a debt or liquidated demand"
and then further on;
"Unless, within 21 days of the day this summons is served upon you, you or your Solicitor give notice of defence ... to the Clerk of the above-mentioned Magistrates' Court, an order for the amount claimed together with costs, may be made against you".
The "Nature of Complaint" was stated as "Work and Labour Done", and it was alleged that the cause of action arose at Melbourne. At its foot, the form was printed "Dated at the above-mentioned Magistrates' Court this ... "and then appeared the stamped date "8 JUL. 1983" and a stamped signature over the printed words "Clerk of the Magistrates' Court". In addition, the number "183 46442" was stamped on the top right hand corner.
Evidence was given by Mr. Michael Quirk, the clerk of the Melbourne Magistrates' Court, that in fact the summons was not issued at the Prahran Court, but at the Melbourne Magistrates' Court. (This was apparent to him from the prefix "183" of the summons number, and the stamped signature which belonged to the then deputy clerk of the Melbourne Court). Accordingly, the references in the summons to the "above-mentioned Magistrates' Court" were clearly incorrect.
In accordance with the direction in the summons, the debtor returned a notice of defence to the Prahran Court, only to have it returned to him with a written notation advising that the matter was a Melbourne Court action, and that the notice should be filed there. This was done by the debtor, and apparently all further documents were filed thereafter at the Melbourne Court. When the petitioner's solicitors realised an error had occurred, they simply submitted future documents with the correct heading. However they took no steps to obtain an order amending the heading on the original document.
The debtor now claims that by reason of this incorrect heading, the proceedings issued against him were in fact a nullity from their inception. It is therefore submitted that there is no valid order or judgment on which to found a bankruptcy notice.
The question that arises is whether the error made on the face of the summons is a fundamental defect rendering it void, or whether it is merely an irregularity that might have rendered the summons voidable on the application of the debtor, but was otherwise capable of amendment. If the latter, it is argued by the petitioner that, by consenting to judgment, the debtor has waived any right to object to the defect, and therefore cannot use it to defeat the application for a sequestration order.
The difference between the two types of defect was considered by the High Court in Plowman v Palmer (1914) 18 CLR 339, where at p.348 Isaacs J. said the distinction depended upon the answer to the question;
"Is there jurisdiction at the time to do the act impeached, even though prior precautions for the protection of a party or other formalities, are directed; or is the act complained of, in the circumstances entirely unprovided for or prohibited at the time it is done?"
This test was considered by the Full Court of the Victorian Supreme Court in Prior v Hannaford (1970) VR 772, where it was held that a County Court "special" summons issued in respect of a claim for unliquidated damages, although improperly issued, was not a nullity but merely a defect which was curable by way of amendment. At p.778 the Court said;
"It is clear that if the special summons that was in fact used was a nullity ab initio, there is no jurisdication to make an amendment. In effect, no proceeding was ever issued, and there is nothing to amend. If, on the other hand, the issue of a special summons instead of an ordinary summons is to be regarded merely as a procedural irregularity, there is ample power to amend. The question is, was the issue of a special summons a nullity, or was it a mere procedural irregularity?"
(See also the comments of Lord Denning MR in MacFoy v United Africa Co. Ltd. (1962) AC 152 at p.160).
It is not always easy to determine into which category a particular defect will fall. (Plowman v Palmer, above, at p.348 and Fry v Moore 23 QBD 395). Examples of errors or defects held to be irregularities are: incorrectly nominating 10.00 a.m. as the return time on a summons instead of 10.15 a.m. (Kingstone Tyre Agency Pty. Ltd. v Blackmore (1970) VR 625), an incorrect endorsement of service where in fact there had been no service (Posner v Collector for Interstate Destitute Persons (Vic) (1946) 74 CLR 461) and service of a summons during the long vacation (MacFoy v United Africa Co. Ltd. (1962) AC 152). On the other hand, a default summons issued for an unliquidated demand (R v Justices at Carlton; Ex parte Dunstan (1964) VR 778) and the failure of an endorsement on a writ to comply with the Court Rules because the contract recited did not stipulate a day certain for performance (Doig v Irvine (1980) 1 NZLR 653) have both been held to render the originating process a nullity.
It is clear that no precise and comprehensive test can be formulated to cover all such cases, and thus it is necessary to consider each matter in the context of its own facts and its relevant legislative framework.
Rule 4(2) of the Magistrates' Courts Rules 1980 provides that the forms to be used in Magistrates' Courts and for the purposes of the Magistrates (Summary Proceedings) Act 1975 (Vic) are those contained in Part II of the First Schedule to the Rules. Form 1 indicates that the general form of heading to be used in the Court is:
"In the Magistrates' Court "No" ..."
at ...."
Section 8 (1A) of the Magistrates' (Summary Proceedings) Act 1975 (Vic) states;
"A default summons or a special summons shall be directed to the person against whom the complaint is laid and shall be returnable at the Magistrates' Court out of which it is issued on a day to be fixed by the Clerk of that Court in the event of notice of defence being given by the defendant."
Section 9 (3) states;
"A default summons or a special summons shall be in or to the effect of the prescribed form and may be issued only by the clerk of the Magistrates' Court in which it is returnable."
In addition, s.94 which deals with amendments, should be considered;
94. Upon the hearing of a complaint the Court may allow any amendment of the complaint or the summons thereon that the Court thinks just, and upon such terms as it thinks just, and all such amendments shall be made as are necessary for the purpose of determining the real questions in dispute between the parties.
It is clear, however, that if the defect in the present case results in the summons being held a nullity, it is not possible to amend the document, and the above section has no operation. (Re Pritchard (1963) 1 Ch 502 at p.519).
If, as the debtor submits and I accept for present purposes, the provisions in ss.8 and 9 are mandatory, much depends on the meaning of the word 'returnable'. In his written submission, counsel for the debtor has argued that the court in which a summons is returnable is that which appears in the heading to the summons. In support of this proposition he relies on dictum of Macfarlane J. in Shilton v Miller (1930) VLR 400 at p.408, where his Honour, in dealing with the validity of a summons issued by a justice of the Central Bailiwick, said;
"In the present case it is important to notice, that, as I have already mentioned, the summons is headed "In the Court of Petty Sessions at Kyneton In the Midland Bailiwick." That summons is in the form of a "default summons upon a complaint for a civil debt" provided by Form 64 in the Second Schedule to the Act. The form commences "In the Court of Petty Sessions at
In the .... Bailiwick. Whereas a complaint has this day been made to a justice of the peace for the said Bailiwick." Now this was a proceeding in a Court of Petty Sessions in the Midland Bailiwick, and the only way in which the form could be filled in for the purposes of this case was "In the Court of Petty Sessions at Kyneton In the Midland Bailiwick." The word of the form, "for the said Bailiwick," can refer only to the bailiwick mentioned in the heading.
In the case of a default summons, at any rate, it appears to me that the form prescribed by the Act clearly recognises that the complaint is to be made to a justice of the peace for the Bailiwick in which the Court of Petty Sessions in which the proceeding is taken is situated."
I do not accept that his Honour's comments are authority for the proposition put by the debtor. It is true that in almost all cases the court named in the heading to the summons will be the court from which the document was issued and therefore the court in which the matter is "returnable". However, in the above passage his Honour deliberately uses the words "the Court ... in which the proceeding is taken". In the case before me, it is clear the the "proceeding" was "taken" in the Melbourne Court: on the face of the summons the cause of action arose in Melbourne, the document was stamped and sealed at the Melbourne Court by a clerk of that court, and after the notice of defence was given to the Melbourne Court the matter was made returnable at the Melbourne Court on a day fixed by a clerk of that Court and it ultimately came before a Magistrate of that Court, albeit one sitting at Collingwood.
Accordingly, in my opinion, where s.9 (3) refers to the court in which the summons is "returnable", it refers to the court which the defendant is required to attend on a fixed day, which will also be the court out of which the summons was issued, as required by the express provisions of s.8 (1A).
In general support of his submission, counsel for the debtor relied on the decision of the Court of Appeal in Re Pritchard (1963) 1 Ch 502. There, the Court was considering the validity of an originating summons seeking provision for a widow from the estate of the testator. The Rules of Court provided that "an originating summons shall be prepared by the applicant or his solicitor, and when so sealed shall be deemed to be issued". Unfortunately the summons in question had not been issued in the Central office as required, but by a district registrar in the district registry. It was held that district registrars had no power to issue "matters which are not proceeding in the district registry and (had) no power to issue documents from the Central office or from any registry other than their own". (At p.526 per Upjohn LJ.)
I am of the opinion that that case is clearly distinguishable from the matter before me. In Re Pritchard the summons was not issued in accordance with the rules because an originating summons could not be validly issued at all by a district registrar out of a district registry. In contrast, the clerk of the Melbourne Court clearly had jurisdiction to issue a default summons out of the Melbourne Court in an action which on its face arose in Melbourne, although obviously he should not have issued the summons without altering the erroneous heading. However his failure to do that does not invalidate the summons from its inception, though it may well render it voidable on the application of a defendant who has been misled by it.
In reaching that conclusion I have borne in mind the words of Upjohn LJ, in Re Pritchard at p 523; who said;
"the court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord.70 (allowing amendments) when justice can be done as a matter of discretion ..."
I also bear in mind the strong dissenting judgment of Lord Denning MR, who would only hold a summons to be a nullity in very limited circumstances, and who said that in most cases, "I am glad to say, you will find that courts have refused to set aside process for technical irregularities" (At p.517)
In Brady v Barrow Steelworks Ltd. (1965) 2 All ER 639, a similar case decided after Re Pritchard, Payne LJ considered the validity of a writ of summons that was issued in the district registry of the High Court of Justice, but which omitted to include in the court heading the division in which it was issued - the Queen's Bench Division. After citing from the judgment of Upjohn LJ in Re Pritchard, his Honour refused to hold the summons a nullity, stating; "the present case seems to me to be readily distinguishable from Pritchard's case since the errors in the form of the writ are not fundamental".
As I have said, it is not always easy to apply the "nullity/irregularity" distinction in a particular case, but I am satisfied that, for the reasons I have stated, the defect in the summons issued against the debtor amounted to an irregularity and did not render it void. Although the debtor was originally misled by the incorrect heading and forwarded a Notice of Defence to the Prahran Court, he soon became aware that the correct court was the Melbourne Court, and raised no objections to the error. Indeed, he was forwarded a notice advising him of the date of the hearing at the Melbourne Court (sitting at Collingwood), he attended on that day, and consented to that Court making an order against him. I therefore hold that he has waived any rights to object to the original defect and cannot now attack the validity of the order on that basis.
In view of the time that has elapsed since this matter was first before the Court I think it desirable that the petitioner make and file further affidavits verifying that a fresh search has been made of the indexes kept by the Registrar stating whether the debtor is a bankrupt or the subject of other bankruptcy proceedings, and that the debt on which the petitioner relies is still owing, as required by s.52(1) of the Act and r.21(1) of the Bankruptcy Rules. I am satisfied that an act of bankruptcy has been committed, and I note that Alex Neville Bird has consented to act as trustee. Subject to the filing of the affidavits I have referred to, there will be an order of sequestration against the estate of the debtor, the act of bankruptcy being the failure of the debtor to comply with the provisions of a bankruptcy notice on or before the 7th day of August 1984. Costs, including all reserved costs, will be in accordance with the statute. I shall sit again to make the formal order as soon as may be convenient after the affidavits have been prepared.
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