Blackshaw Services Pty Ltd v Cureton

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BLACKSHAW SERVICES PTY LTD  v CURETON [2003] FMCA 591

BANKRUPTCY – Application for sequestration order – whether bankruptcy notice valid – where figure indicating debt crossed out and rewritten by hand – where amendments were allegedly made prior to notice being issued – whether holograph amendments on the notice were capable of misleading the debtor – where the bankruptcy notice required payment to the creditor’s solicitor – whether this was confusing for the debtor – where the creditor’s solicitor signed the bankruptcy notice – where notice failed to state that the solicitor is acting as agent for the creditor – whether this fact is capable of misleading debtor as to the true identity of the creditor – whether o 45 r1 Federal Court Rules allows the creditor’s solicitor to sign on his client’s behalf.

Bankruptcy Act 1966 (Cth), ss.52, 306
Bankruptcy Regulations 1996 Reg 4.02
Local Courts (Civil Claims) Act 1970
Federal Court of Australia Act 1976
Federal Court Rules

Circle Credit Co-op Ltd v Lilikakis [2002] FCA 667
Chandramouli v Wallader [2001] FCA 808
Keith John McAlpine Ex parte: Amev Finance Limited (unrep) Fed Court 1412 1987

Owners Corp (formerly The Proprietors) Strata Plan 3438 v Geoffrey Stephen Hudson [1998] 762 FCA
E A Pugliese v The Chase Manhattan Bank Australia Limited  (1993) 44 FCR 536

Re Maddox; Ex parte The Debtor (1979) 24 ALR 279
Re Moss; Ex parte Tour Finance Ltd [1969] ALR 285
Clyne v Deputy Commissioner of Taxation (NSW) (1982-83) 45 ALR 323
DCT v Boxshall (1988) 83 ALR 175
Meekin v Commonwealth Bank of Australia [1999] FCA 682
Trustees of the Franciscan Missionaries of Mary v Weir (2000) 176 ALR 501

Applicant: BLACKSHAW SERVICES PTY LTD

Respondent: WILLIAM CURETON

File No: SZ 2385 of 2003

Delivered on: 19 December 2003

Delivered at: Sydney

Hearing date: 12 December 2003

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Peter Bruckner

Solicitors for the Applicant: Meehans Solicitors

Solicitors for the Respondent: J Merewether of Merewether & Co

ORDERS

1. Application dismissed.

2. Applicant creditor pay the respondent debtor’s costs to be taxed if not agreed under the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2385 of 2003

BLACKSHAW SERVICES PTY LTD

Applicant

And

WILLIAM CURETON

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by way of an application for a sequestration order. The debtor seeks to have the application dismissed upon the ground that the bankruptcy notice on which the petition is based is invalid. The parties have agreed that I should first decide this issue before proceeding to consider whether or not the matters required by s.2 of the Bankruptcy Act 1966 (Cth) have been established.

2. The bankruptcy notice in question was numbered NN2479/03 and was issued by the Official Receiver for the Bankruptcy District of New South Wales on 2 October 2003.  The debtor submits there are three invalidating faults with the notice. 

3. The first matter identified by the debtor is that on page…