Australian Securities Commission v Melbourne Asset Management Nominees Pty Ltd

[1994] FCA 1031

WALLACE ALLAN TERRY v. JOYCE TERRY; MAXWELL WILLIAM PRENTICE and THE OFFICIAL
RECEIVER
No. NB1815 of 1992
FED No. 1031/94
Number of pages - 2
Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
LINDGREN J

CATCHWORDS

Costs - partially invalid notice under s 77C of the Bankruptcy Act 1966 issued by the second respondent at the request of the first respondent - responsibility of issuer of a notice and of those procuring issue of a notice, non-compliance with which is a punishable offence.

Bankruptcy Act 1966 s 77C

HEARING

SYDNEY
#DATE 9:12:1994

Mr M R Aldridge of counsel instructed by P W Turk and Associates appeared for the applicant.

Mr A Armstrong of Holmes and Bevan appeared for the Official Trustee.

Miss S Nash of Sally Nash and Co appeared for the Official Receiver.

ORDER

THE COURT ORDERS: 1. THAT the respondents pay 50% of the applicant's costs.

2. THAT as between themselves, the first respondent bear two-thirds of those costs and the second respondent bear one third of those costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

LINDGREN J In this matter I gave a judgment on 2 December 1994 and the only matter to be determined today is that of costs. I will not repeat, but I will take as read, my Reasons for Judgment dated 2 December 1994.

1. It suffices for present purposes to say that by her application filed on 15 November 1994, the applicant, Joyce Terry ("Mrs Terry"), the wife of the bankrupt, Wallace Allan Terry, applied for an order setting aside a notice dated 3 November 1994 from Robert John Cruickshanks, Acting Official Receiver addressed to her purportedly issued under s 77C of the Bankruptcy Act 1966 ("the Act").

2. Mrs Terry succeeded in one respect and failed in another. She succeeded in having the notice set aside insofar as it called for production of documents but failed insofar as it required her to attend for examination. Submissions have been made by the applicant and the respondents as to the appropriate orders to be made as to costs.

3. It was necessary for the proceedings to be commenced, in particular, because Mrs Terry was subject to penalties, indeed heavy penalties, for non-compliance with a valid notice issued under s 77C of the Act. I referred to these in my judgment delivered on 2 December 1994. Non-compliance with a valid notice could have led to her imprisonment.

4. I think it appropriate that there be an order in favour of Mrs Terry but only as to 50 per cent of her costs. This reflects the fact that Mrs Terry failed as to one of the two distinct issues argued on the hearing. The view which I have expressed is one which I had formed as a result of reading and considering the parties' written submissions. It happens to coincide with a submission made this morning orally on behalf of Mrs Terry (though not with the written submissions made on her behalf).

5. The more difficult question is to determine how, as between the respondents, the half of Mrs Terry's costs which I have awarded to her should be borne. The first respondent ("the Trustee"), requested the second respondent ("the Official Receiver") to issue the notice. There has been tendered on behalf of the Trustee the form of request. The Official Receiver issued the notice in a form which differed from that which had been requested. The form of notice as issued was narrower than that which had been requested, although still not in an appropriate form. That the Trustee requested a notice in a broader form does not assist him on the question of costs.

6. It is by virtue of the Official Receiver's having lent his name to the notice that the potentiality for penalties arises and for this reason the Official Receiver should, in my view, bear some responsibility for the notice.

7. On the other hand it is clear that the party taking the initiative was the Trustee. It has been submitted for the Official Receiver that there should be an order for costs in his favour. I reject that submission. He issued a notice which was, on its face, defective.

8. I think that the appropriate order is that as between themselves the Trustee bear two-thirds of those costs which I have ordered in favour of Mrs Terry and that the Official Receiver bear one-third of those costs which I have ordered in favour of Mrs Terry.

9. I should add that I appreciate that the provision in relation to notices of the kind in question was introduced by Act No 9 of 1992 and on one view it is perhaps understandable that a familiarity with the section and its requirements might take some time to develop, although of course cases on generally similar notices in other areas of the law do exist.

10. When an Act of Parliament authorises the issue of a notice, non-compliance with which is a punishable offence, it behoves all those who invoke the provision to have due regard to the interests of the person or persons to whom such a notice is directed.