FEDERAL COURT OF AUSTRALIA
Bendigo Bank Ltd v Scerri [1999] FCA 1215
BANKRUPTCY – notice – formal defect or irregularity – amount due on judgment debt – notice referring to total debt owing comprising both judgment debt and interest
Bankruptcy Act 1966 (Cth) – s 40(1)(g) and s 41(2)
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 applied
James v Federal Commissioner of Taxation (1955) 93 CLR 631 appliedBENDIGO BANK LTD V JOSEPH ANTHONY SCERRI
V 7329 OF 1999
JUDGE: FINKELSTEIN J
PLACE: MELBOURNE
DATE: 3 SEPTEMBER 1999
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 7329 OF 1999
BETWEEN:
BENDIGO BANK LIMITED
ApplicantAND:
JOSEPH ANTHONY SCERRI
RespondentJUDGE:
FINKELSTEIN J
DATE OF ORDER:
3 SEPTEMBER 1999
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The petition be 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
V 7329 OF 1999
BETWEEN:
BENDIGO BANK LIMITED
ApplicantAND:
JOSEPH ANTHONY SCERRI
Respondent
JUDGE:
FINKELSTEIN J
DATE:
3 SEPTEMBER 1999
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Bendigo Bank Limited petitions for a sequestration order against the estate of Joseph Anthony Scerri. The act of bankruptcy upon which the petition is based is the failure to comply with a bankruptcy notice that was founded on a judgment debt: s 40(1)(g) of the Bankruptcy Act 1966 (Cth).
The petition, which is not opposed, was returnable before a registrar of the Court. However the registrar was of the view that the bankruptcy notice might be defective and referred the petition to a judge.
The bankruptcy notice is in the form prescribed by reg 4.02 of the Bankruptcy Regulations. It states (in par 1) that the petitioner claims that the debtor “owe[s] a debt of 20,088.71 as shown in the Schedule” and (in par 2) that “the debt is due and payable”. The notice requires (in par 3) the debtor to pay “to the creditor the amount of the debt or to make an arrangement to the creditor’s satisfaction for settlement of the debt” within 21 days after the service of the notice. A place for payment is nominated in par 4. The notice warns (in par 5) that if the debt is not paid or settled, bankruptcy proceedings may be taken against the debtor.
Paragraph 7 of the notice is important. It provides:
“In addition, within the time specified in paragraph 3 above, you may file an application to the Federal Court of Australia for an order to set aside this Bankruptcy Notice on the specific grounds that:
(a) you have a counterclaim, set-off or cross demand equal to or exceeding the sum specified in this Bankruptcy Notice as owing to the judgment creditor; and
(b) in the action or proceeding in which the judgment or order mentioned in paragraph 2 of this Bankruptcy Notice was obtained, you could not have set up that counterclaim, set-off or cross demand*.
* This means that,…
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- Case
- [1999] FCA 1215
- Decision Date
CaseChat Overview and Summary
The court considered the applicable limitation period under the Limitation Act 1969 (Vic) and found that the bank's action was not statute-barred as it was commenced within the requisite time frame. The court also examined the provisions of the Australian Consumer Law, specifically section 24, to assess whether the terms of the loan agreement were unfair. The court held that the loan agreement did not contain any terms that were considered unfair and unconscionable.
Having determined that the bank's claim was not statute-barred and that the loan agreement was not unfair, the court dismissed Mr Scerri's opposition to the bank's application for summary judgment. Consequently, the court ordered that the petition be dismissed.
Orders
Orders of the court
The petition be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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