BERNARD v VALASSIS

[2002] FMCA 285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERNARD v VALASSIS [2002] FMCA 285

BANKRUPTCY – Bankruptcy petition – opposition on the grounds of alleged defect in bankruptcy notice – the failure to mention s.39 of the Local Courts (Civil Claims) Act1970 in the form – whether previous authority on point still valid – need for Federal Court and Federal Magistrates Court to be consistent – later decision of federal court followed – defect not fatal – application granted.

Bankruptcy Act 1966 (Cth) s.306

Local Courts (Civil Claims) Act 1970 (NSW) s.39

Supreme Court Act 1970 (NSW) s.95(1)

Boorowa Shire Council v Stewart Edgar John Booth [2001] FMCA 31

Australian Steel Co (Operations) Pty Ltd v Lewis (2001) 109 FCR 33
Jiminez v Welcome Homes real Estate Pty Ltd [2001] FMCA 122
General Motors Acceptance Corp Australia v Marshall [2002] FCA 1006
McDowell v Fox [2002] FMCA 254

Applicant: ERIC BERNARD

Respondent: DENNIS VALASSIS

File No: SZ790 of 2002

Delivered on: 18 November 2002

Delivered at: Sydney

Hearing Date: 5 November 2002

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Ms Margaret Sneddon

Solicitors for the Applicant: Mr Charles Geoffrey Nye of Gray & Perkins Solicitors

Solicitors for the Respondent: No appearance

ORDERS

1. Sequestration order made against the estate of Dennis Valassis.

2. Maxwell William Prentice be appointed to act as trustee of the insolvent estate.

3. Applicant’s costs to be paid from the estate of the debtor in accordance with the provisions of the Bankruptcy Act and shall be calculated in accordance with the provisions of the Federal Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ790 of 2002

ERIC BERNARD

Applicant

And

DENIS VALASSIS

Respondent

REASONS FOR JUDGMENT

1. When this application for a sequestration order came before a registrar of this court she pointed out to the petitioning creditor that she believed that there was a matter of concern arising out of the manner in which the bankruptcy notice upon which the creditor intended to rely had been drawn. After an adjournment the matter was referred to me for decision. At the hearing the debtor did not appear and was not represented. I was assisted by some well-prepared submissions on the part of Counsel for the petitioning creditor.

2. The bankruptcy notice was prepared in accordance with Form 1 from regulation 4.02 of the Bankruptcy Regulations. On page five of the notice the following appears:

   “Note two: Interest Accrued (Item 3 of the Schedule)

   If interest is being claimed in this bankruptcy notice, details of the calculations of the amount of interest claimed are to be set out in a document attached to this bankruptcy notice. The document must state:

   (a)The provision under which the interest is being claimed; and

   (b)The principal sum on which, the period for which, and the interest rate or rates at which, the interest is being claimed.

   (NB: If different rates are claimed for different periods full details must be shown)

3. There is then attached to the notice a document headed