Bendigo Bank Ltd v Hussain-Barbour

[1999] FCA 1545

FEDERAL COURT OF AUSTRALIA

Bendigo Bank Ltd v Hussain-Barbour [1999] FCA 1545

BENDIGO BANK LIMITED v SABINA HUSSAIN-BARBOUR

VG 7561 of 1999

GOLDBERG J
12 NOVEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 7561 of 1999

BETWEEN:	BENDIGO BANK LIMITED Applicant
AND:	SABINA HUSSAIN-BARBOUR Respondent
JUDGE:	GOLDBERG J
DATE OF ORDER:	12 NOVEMBER 1999
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The petition dated 20 August 1999 and filed on 25 August 1999 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 7561 of 1999

BETWEEN:	BENDIGO BANK LIMITED Applicant
AND:	SABINA HUSSAIN-BARBOUR Respondent

JUDGE:	GOLDBERG J
DATE:	12 NOVEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. A Creditor’s Petition was filed on 25 August 1999.  The act of bankruptcy relied upon was the failure of the respondent to comply with the requirements of a bankruptcy notice dated 12 May 1999.  The bankruptcy notice claimed that a debt of $7480.89 was owing “as shown in the Schedule”.  The Schedule showed that the debt comprised a judgment debt and interest which had accrued on the judgment debt. 

2. The bankruptcy notice was in the same form, mutatis mutandis, as the bankruptcy notice in proceeding number VG7562 of 1999 in which Bendigo Bank Limited is applicant and Gary John Williams is respondent.  The notice contained the same omission as in that proceeding.  The document attached to the notice did not set out or state the provision under which the interest was being claimed. 

3. For the reasons set out in the Reasons for Judgment in VG 7562 of 1999 I find that the omission to set out or state the provisions under which the interest was being claimed was not a formal debt but was a substantive defect which vitiated the notice.  The petition will be dismissed.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             

Counsel for the Applicant:	Mr J Dunne
Solicitor for the Applicant:	John Dunne & Associates
Respondent:	No appearance for the Respondent
Date of Hearing:	3 November 1999
Date of Judgment:	12 November 1999