Chandramouli v Wallader

[2001] FCA 808

FEDERAL COURT OF AUSTRALIA

Chandramouli v Wallader [2001] FCA 808

BANKRUPTCY – bankruptcy notice – alteration after issue

Federal Court Rules O 77 r 8

Circle Credit Co-op Ltd v Lilikakis (2000) 99 FCR 592 at [18] followed
Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 followed

REVATHI CHANDRAMOULI v WILLIAM DAVID WALLADER & ANOR.
Q 7313 OF 2000

HEEREY J
15 JUNE 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q7317 OF 2000

BETWEEN:

REVATHI CHANDRAMOULI
APPLICANT

AND:

WILLIAM DAVID WALLADER
FIRST RESPONDENT

DAVID JOHN KERR
SECOND RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

15 JUNE 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

(1)The sequestration order made on 20 December 2000 is set aside.

(2)The first respondent pay the costs of the applicant.

(3)The applicant pay the Trustee’s costs of the application and costs of administration.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q7317 OF 2000

BETWEEN:

REVATHI CHANDRAMOULI
APPLICANT

AND:

WILLIAM DAVID WALLADER
FIRST RESPONDENT

DAVID JOHN KERR
SECOND RESPONDENT

JUDGE:	HEEREY J
DATE:	15 JUNE 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. The applicant applies under O 77 r 8 of the Federal Court Rules to set aside a sequestration order which was made against her on 20 December 2000.  The sequestration order was made on the ground of non-compliance with a bankruptcy notice.  There was first a notice issued on 1 September 2000 which was based on a judgment debt in the Queensland Magistrates Court for $21,389.35.  In the schedule that amount appears as the amount of the judgment or order.  Then in item 4, the subtotal, the same amount appears.  Then in item 5, “payments made and/or credits allowed since the date of judgement or order”, the same amount appears again, and, finally, the total debt owing is also shown in the same amount.  Thus, on its face, the notice shows an amount of the judgment or order, payments made to the full amount of that judgment or order, and yet a total debt owing of the same amount. 

2. The bankruptcy notice was apparently given to the applicant's husband and received by her on 10 September 2000.  The petition was presented on 21 November 2000 and, as initially presented, alleged a failure to comply on or about 2 October 2000 with the requirements of a bankruptcy notice served on the applicant on 10 September 2000.  However, it seems that the petitioning creditor accepted that there were problems, either with service of the notice or because of the form of the notice for reasons to which I have already referred, or perhaps both.  So service (accepted to be proper service) of the notice was effected on the applicant on 27 October.

3. It is clear from the copy of the petition subsequently served on the applicant that it was this second service of the notice that was relied on.  The petition was…