Application to set aside Bankruptcy notice Lock, Anthony

Re: VITTORIA DI GIACOMO
Ex parte: BORAL STEEL LIMITED (1983) 68 FLR 106
No. P892 of 1982
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Evatt J.(1)

CATCHWORDS

Bankruptcy - Creditor's Petition - Bankruptcy Notice - enforcement of judgment debt stayed before service (but not before issue) of Bankruptcy Notice - whether said Notice could found Act of Bankruptcy - rescission of order staying enforcement of judgment debt after service of said Notice - whether Notice thereby "revives".

Bankruptcy Act 1966, ss.40(1)(g) and 41(3)(a) and (b)

District Court Act 1973 (N.S.W.) s.88

Bankruptcy - Creditor's petition - Bankruptcy notice - Bankruptcy notice founded on judgment debt - After issue of notice but before service order made for payment of judgment debt by instalments - Whether notice could found an act of bankruptcy - Subsequent rescission of instalment order - Effect on bankruptcy notice - Bankruptcy Act 1966 (Cth), ss 40(1)(b), 41(3)(a) and 41(3)(b) - District Court Act 1973 (N.S.W.), s. 88.

HEADNOTE

In March 1982, Boral Steel Ltd (the creditor) obtained judgment in the District Court of New South Wales against Giacomo (the debtor) in the sum of $4,242.90. On 16 April 1982 a bankruptcy notice was issued founded upon the unsatisfied judgment. On the same day, the debtor filed an application pursuant to s. 88 of the District Court Act 1973 (N.S.W.) to pay the judgment by instalments. The Registrar of the District Court, on 10 May 1982 made an ex parte order that the debtor pay the judgment by instalments. Three days later, on 13 May 1982 the bankruptcy notice was served on the debtor. On 14 May 1982 the creditor filed a notice of objection to the s. 88 order. This objection was listed for hearing on 15 July 1982. Upon being called on that date, only the creditor appeared, whereupon the Registrar rescinded the order. Later that day, the debtor at the court enquired as to when the creditor's application would be heard. He maintained he had been present throughout the day and had not heard the case called. He immediately made a fresh s. 88 application and on 28 July 1982 the Registrar made an ex parte order for payment by instalments on the debtor's second s. 88 application. On 6 August 1982 the creditor filed an objection to the instalment order made on the ex parte application on 28 July 1982.

On 9 August 1982 the creditor presented the petition herein dated 2 August 1982 to the court. The petition was based on the alleged act of bankruptcy being the failure of the debtor on or before 27 May 1982 to comply with the requirements of the bankruptcy notice served on 13 May 1982. On 2 September 1982 both parties appeared before the District Court and the ex parte order for instalment payments made on 28 July 1982 was varied to increase the required amount of each instalment.