Chng v Shome

[2000] FCA 753

FEDERAL COURT OF AUSTRALIA

Chng v Shome [2000] FCA 753

BANKRUPTCY - non-compliance with a bankruptcy notice - the validity or otherwise of the notice - whether a personal signature of the creditor’s agent is required

Bankruptcy Act 1966 ss 41, 306, 308
Bankruptcy Regulations reg 4.02

Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574
National Australia Bank Limited v Westbrook [2000] FCA 246
Bendigo Bank v Williams [2000] FCA 482
Kirk v Ashdown [1999] FCA 1664

RYAN J
MELBOURNE
7 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7072 OF 2000

BETWEEN:	DOREEN CHNG APPLICANT
AND:	CHANDRA LOURDES SHOME RESPONDENT
JUDGE:	RYAN J
DATE OF ORDER:	7 JUNE 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        There be a sequestration order against the estate of the respondent debtor.

2.The applicant’s costs of the application including the costs of the hearing of 3 April 2000 and any reserved costs be taxed and paid out of the estate of the bankrupt in accordance with the statute.

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 7072 OF 2000

BETWEEN:	DOREEN CHNG Applicant
AND:	CHANDRA LOURDES SHOME Respondent

JUDGE:	RYAN J
DATE:	7 JUNE 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court a creditor’s petition for a sequestration order against the estate of the respondent based on non-compliance with a bankruptcy notice (“the notice”) issued on 17 December 1999.  The petition came before me on 3 April 2000, referred by Deputy Registrar Wood.

2. The only issue of significance in the matter is the validity or otherwise of the notice. It arises in light of the way in which reference to the applicant and the confirmatory signature on the schedule to the notice were completed. The form required to be completed is prescribed by s 41(2) of the Bankruptcy Act 1966 (Cth) (“the Act”) and reg 4.02 of the Bankruptcy Regulations. The scheme set out in the Act requires the creditor, or the creditor’s agent, to complete a draft bankruptcy notice which is submitted to the Official Receiver under whose authority the notice may be issued. In the present case, the notice served on the respondent bore the seal of the Official Receiver’s delegate.

3. That part of the notice which is at issue is as follows:

    
   

4. A Full Court of this Court, in Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 (“Franciscan Missionaries”) has recently considered a similar issue, and declined to follow the reasoning of a line of decisions at first instance culminating in National Australia Bank Limited v Westbrook [2000] FCA 246. The Full Court reached this conclusion (at para 10) about the effect of the language in which the form prescribed by reg.4.02 is cast:

   “Neither the use of the singular number nor the use of the masculine and feminine genders can require…