Commonwealth Bank of Australia v O'Sullivan, Faye Dorothy

[1997] FCA 1539

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8100  of   1997

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA APPLICANT
AND:	FAYE DOROTHY O'SULLIVAN RESPONDENT
JUDGE(S):		LEHANE J
DATE OF ORDER:		9 DECEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The petition be referred to the Deputy Registrar for hearing on the footing that the bankruptcy notice should not be treated as invalid for the reason that it specifies in paragraph 3 of the “Information to Debtors” the address of the Sydney registry of the Court.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 8100 of 1997

BETWEEN:	COMMONWEALTH BANK OF AUSTRALIA APPLICANT
AND:	FAYE DOROTHY O'SULLIVAN RESPONDENT

JUDGE(S):	LEHANE J
DATE:	9 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

The Deputy Registrar has referred to the court a bankruptcy petition seeking sequestration of the estate of Fay Dorothy O’Sullivan.  An issue arises, and it has been treated before me as a separate issue, as to whether the bankruptcy notice, failure to comply with which is the act of bankruptcy relied upon, was in the correct form.  The particular form was one adopted as an interim measure following substantial amendments to the Bankruptcy Act 1966 (Cth) (“the Act”) and has now fortunately been replaced.

The particular problem arises in this way.  The address of the debtor is stated as an address in New South Wales.  There is no evidence before me as to where precisely in New South Wales, as a matter of geography, the address stated is to be found.  The form of bankruptcy notice includes a section headed “Information for Debtors”.  Note 3 in that section requires there to be stated the address of the Federal Court registry nearest the debtor’s address as shown in the bankruptcy notice.

The address stated in the present notice is that of the Sydney registry of the court.  The material before me indicates that the debtor was not served in New South Wales: the bankruptcy notice was served on her in Queensland.  There is no evidence as to the debtor’s actual residential address at the time when the bankruptcy notice was either issued or served.  There is evidence that the debt founding the judgment, in turn founding the bankruptcy notice, was secured by a mortgage of property at the New South Wales address of the debtor stated in the notice.

The Deputy Registrar has referred the matter to me on the footing that there may be doubt, in the light of unreported decisions of judges of this court, as to whether it was correct to state in the bankruptcy notice, as the address of the nearest registry, that of the Sydney registry in circumstances where the debtor was served with the notice not in New South Wales but in Queensland.   The decisions to which reference was made are those of Foster J in Foote v Mid-West Finance Pty Ltd (receiver appointed) (in liquidation) (9 September 1997, unreported) and of Burchett J in Hilti (Australia) Pty Limited v Millard (30 September 1997, unreported).  The former of those decisions is of little immediate relevance.  There the address stated in the “Information to Debtors” was clearly incorrect.  It was not the address of a registry of the court at all.  The decision of Burchett J in Hilti (Australia) concerned a slightly different question from that before me. The question before his Honour was whether, in the case of a bankruptcy notice addressed to a debtor resident (and presumably stated in the notice to be resident) in New South Wales and served in New South Wales was valid despite the fact that, in accordance with the form now current, it stated as the Federal Court registry for “your” (that is the debtor’s) state or territory, the registry of the court in Adelaide. His Honour held that the notice was invalid on the footing that he was not prepared, in a matter as serious as bankruptcy, to stretch the law to validate a document such as a bankruptcy notice which did not comply with the requirements laid down by the legislature. In coming to that conclusion, His Honour was of course stating in particular form the well established proposition that strict compliance is required with the provisions of the Act and rules as to the form of a bankruptcy notice.

This case, however, seems to me to be rather different.  The address of the debtor stated in the form is an address in New South Wales.  The form required in the “Information for Debtors” section a statement of the address of the nearest Federal Court registry to the debtor’s address as shown in the notice.  That address, as I have said, was stated as the address of the registry in Sydney.  In my view, the circumstance that the notice was served on the debtor outside New South Wales is of no relevance to the question whether the correct address is stated in the “Information for Debtors”.

There is no evidence before me, and I understand none has been filed, as to where the debtor now resides or where she resided at the time the bankruptcy notice was issued or served.  There is, however, nothing before me to indicate that the New South Wales address given as the address of the debtor was not an address of the debtor and, that being so and the address being a New South Wales address, I see nothing to invalidate the form of the notice in the statement that the address of the relevant registry is that of the Sydney registry.

Accordingly, I think the appropriate course for me to take is to refer the petition to the Deputy Registrar for hearing on the footing that the bankruptcy notice should not be treated as invalid for the reason that it specifies in paragraph 3 of the “Information for Debtors” the address of the Sydney registry of the court; I so order.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane

Associate:

Dated:            9 December 1997

Counsel for the Applicant:	P. Braham
Solicitor for the Applicant:	Barry Lazarus Lawyers
Date of Hearing:	9 December 1997
Date of Judgment:	9 December 1997