Circle Credit Co-Op Ltd v Lilikakis

FEDERAL COURT OF AUSTRALIA

Circle Credit Co-op Ltd v Lilikakis [2000] FCA 667

BANKRUPTCY – bankruptcy notice – alteration made after issue and before service without authority of Official Receiver – whether altered notice valid

Bankruptcy Act 1966 (Cth) (the Act) ss 40(1)(g), 41(1),(2)

Hilti (Australia) Pty Ltd v Millard [1997] FCA 1131 mentioned
Prudential-Bache Securities (Australia) Limited v Warner [1999] FCA 1143 followed
Re Hussey; Ex parte TSAI Pty Ltd (unreported, C A Sweeney J, 15 June 1989) mentioned
Kirk v Ashdown [1999] FCA 1664 mentioned

Bendigo Bank Ltd v Williams [2000] FCA 482 mentioned

Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 mentioned

CIRCLE CREDIT CO-OPERATIVE LIMITED    v ANIA LILIKAKIS

V 7830 OF 1999

HEEREY J
19 MAY 2000

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7830 of 1999

BETWEEN:	CIRCLE CREDIT CO-OPERATIVE LIMITED Applicant
AND:	ANIA LILIKAKIS Respondent
JUDGE:	HEEREY J
DATE OF ORDER:	19 MAY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal by way of notice of motion filed 7 April 2000 is 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 7830 of 1999

BETWEEN:	CIRCLE CREDIT CO-OPERATIVE LIMITED Applicant
AND:	ANIA LILIKAKIS Respondent

JUDGE:	HEEREY J
DATE:	19 MAY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant appeals against a decision of Deputy Registrar Wood made on 23 March 2000 dismissing its creditor’s petition.  The debtor did not appear and was not represented on the appeal or at the hearing before the Deputy Registrar.  The question on which the appeal turns is the effect of an amendment made to the bankruptcy notice after issue and before service.  The amendment took the form of crossing out the address of the South Australian District Registry of the Federal Court in par 10 and inserting the address of the Northern Territory District Registry.  The amendment was made by the process server on the instruction of the applicant’s solicitors but without the authority of an Official Receiver. 

2. On 25 May 1999 the applicant obtained a judgment by default in the Magistrates’ Court at Melbourne against the debtor for $11,509.43 together with interest $686.50 and costs $643.00.  The debtor had been served with the Magistrates’ Court summons at 57A George Street, Moonta, South Australia.

3. On 27 May 1999 on the application of the applicant a bankruptcy notice was issued by an Official Receiver in the form prescribed under s 41(2) of the Bankruptcy Act 1966 (Cth) (the Act) by reg 4.02(1) of the Bankruptcy Regulations. In par 10 of the notice as issued the notice stated:

   “The Federal Court Registry for your State or Territory is located at:

   Level 8 Grenfell Centre
   25 Grenfell Street
   Adelaide  SA  5000
   Telephone:  [phone]”

4. The notice was signed “T. Beirouti” and bore a stamp “Tina Beirouti for Official Receiver, Victoria”. 

5. The address of the debtor stated in the notice was…