Bendigo Bank Ltd v Gard

FEDERAL COURT OF AUSTRALIA

Bendigo Bank Ltd v Gard [1999] FCA 1179

BANKRUPTCY – bankruptcy notice – failure to set out a calculation of the interest  - whether bankruptcy notice is invalid – whether failure to set out a calculation of the interest is a substantive defect

Bankruptcy Act 1966 (Cth), s 41(2)
Bankruptcy Regulations, Form 1 Schedule 1

Commonwealth Bank of Australia v Horvath [1999] FCA 143 cited

Scerri v Karl, unreported, Beaumont J, 17 March 1998 cited
American Express International Inc v Alex Held [1999] FCA 321 at [9] applied

BENDIGO BANK LITIMED v SCOTT ANDREW GARD
VG 7902 OF 1998

NORTH J

5 JULY 1999

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7902 OF 1998

BETWEEN:	BENDIGO BANK LIMITED Applicant
AND:	SCOTT ANDREW GARD Respondent
JUDGE:	NORTH J
DATE OF ORDER:	5 JULY 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The petition is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7902 OF 1998

BETWEEN:	BENDIGO BANK LIMITED Applicant
AND:	SCOTT ANDREW GARD Respondent

JUDGE:	NORTH J
DATE:	5 JULY 1999
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

1. Before the Court is a creditor's petition filed by Bendigo Bank Ltd, the applicant, against Scott Andrew Gard, the respondent. The petition is founded on an act of bankruptcy, namely failure to comply with the requirements of a bankruptcy notice. The bankruptcy notice relied upon a judgment obtained in the Melbourne Magistrates’ Court on 30 January 1995. The respondent has not appeared to oppose the making of a sequestration order. However, a matter was raised by the registrar before whom the petition originally came, as to the validity of the bankruptcy notice and consequently the ability of the court to make the sequestration order sought. The form of bankruptcy notice prescribed under s 41(2) of the Bankruptcy Act 1966 (Cth) (the Act) is contained in Form 1 of Schedule 1 to the Bankruptcy Regulations, as follows:

Column 1	Column 2
1.	Amount of judgment or order
plus	2.	Legal costs if ordered to be paid and a specific amount was not included in the judgment or order (see Note 1, below)
plus	3.	If claimed in this Bankruptcy Notice, interest accrued since the date of judgment or order (see Note 2, below)
4.	Subtotal
less	5.	Payments made and/or credits allowed since date of judgment or order
6.	Total debt owing

(NB: Amounts, where applicable, are to be inserted in column 2)

___________________________________________________________

Note 1:    Legal costs (item 2 of the Schedule)
If legal costs are being claimed in this Bankruptcy Notice, a certificate of taxed or assessed costs in support of the amount claimed must be attached to this Bankruptcy Notice.

Note 2:    Interest accrued (item 3 of the Schedule)
If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed…