Elders Ltd v Lloyd

Case [2005] FMCA 1020


FEDERAL MAGISTRATES COURT OF AUSTRALIA

ELDERS LTD v LLOYD & ANOR [2005] FMCA 1020

BANKRUPTCY – Proceedings in connection with sequestration – petition and sequestration order – hearing of creditor's petition – tender of payment by debtor – whether election to accept tender by agent of creditor company – no election when agent merely receipted the promissory notes tendered.

BANKRUPTCY – Proceedings in connection with sequestration – petition and sequestration order – hearing of creditor's petition – misnomer – incorrect spelling of debtor’s middle name – formal defect only.

Bankruptcy Act 1966, ss.41, 46, 109, 306

Alexander Korda Film Productions Limited v Columbia Pictures Corporation Limited and Anor [1946] Ch 336
Allen v Royal Bank of Canada (1925) 134 LT 194
Australia and New Zealand Banking Group v Coutts [2003] FCA 968
Australia and New Zealand Banking Group v Foyster [2000] FCA 400
Australian Workers' Union v Bowan (1946) 72 CLR 575
Belshaw v Bush (1851) 11 CB 191
Blumberg v Life Interests and Reversionary Securities Corp. [1897] 1 Ch 171
Bowen, Re; Ex parte Australian Workers' Union (1945) 13 ABC 275
Bowes v Foster (1858) 2 H & N 779
Brien v. Dwyer (1978) 141 CLR 378
Buckley, Re; Ex parte James Hardie & Co. Pty Ltd (1976) 27 FLR 496
Commonwealth, The v Verwayen (1990) 170 CLR 394
Corney v Brien (1951) 84 CLR 343
Crowe v Hughes [1997] FCA 864
Debtor, Re a [1937] Ch 181
Edwards, Dunlop and Co v Harvey (1927) LR 37
Ell, Re; Ex parte Austin (1886) 4 NZLR 114
Geary, Re; Ex Parte Feez Ruthning and Co Qld (unrep, Fed Ct, Spender J, 16/8/1984)
Gentry, In re [1910] 1 KB 825
International Alpaca Management v Ensor [1999] FCA 72
Kirkwood, Ex parte; re Mason (1879) 11 ChD 724
McIntosh v Shashoua (1931) 46 CLR 494
McSwiney, Re; Ex parte Davies (unrep, Fed Ct, Beaumont J, 24/11/1986)
National Australia Bank Limited v KDS Construction Services Pty Ltd (1987) 63 CLR 668
Romer, Hass & Aslam, Re [1893] 2 QB 286
Sargent v ASL Developments Ltd (1974) 131 CLR 623
Scarf v Jardine (1882) LR 7 AC 345
Sweeting v Pearce (1861) 9 CB(NS) 534
Tropical Traders Ltd v Goonan (1964) 111 CLR 41

Ward and Ward, Re; Ex parte RW Brown and Company Pty Ltd (1991) 28 FCR 329

Wren v Mahoney (1972) 126 CLR 212

Applicant: ELDERS LTD
Respondents: JOHN FREDERICK MAURICE LLOYD & RITA BEVERLEY LLOYD
File No: MLG 219 of 2005
Delivered on: 22 July 2005
Delivered at: Melbourne
Hearing date: 25 May 2005
Judgment of: Riethmuller FM

REPRESENTATION

Counsel for the Applicant: Mr Dunne
Solicitors for the Applicant: John Dunne & Associates
Counsel for the Respondent: No appearance

ORDERS

  1. That the applicant have leave to amend the name of the first respondent by substituting ‘MAURICE’ for the name ‘MORRIS’.

  2. That the estate of JOHN FREDERICK MAURICE LLOYD be sequestrated.

  3. That the estate of RITA BEVERLEY LLOYD be sequestrated.

  4. That the applicant’s costs of and incidental to the application…

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AGLC
Elders Ltd v Lloyd [2005] FMCA 1020
Case
[2005] FMCA 1020
Decision Date

CaseChat Overview and Summary

The matter before the court involved Elders Ltd as the applicant, seeking to amend the name of the first respondent from ‘Morris’ to ‘Maurice’ in relation to bankruptcy proceedings. The respondents, JOHN FREDERICK MAURICE LLOYD and RITA BEVERLEY LLOYD, opposed the application. The dispute centred on the correctness of the name used in the bankruptcy proceedings and its implications for the administration of the estates.

The central legal issues revolved around the accuracy of the name used in the application for bankruptcy and the procedural implications of such an error. Specifically, the court had to determine whether the applicant was entitled to amend the name of the respondent and whether the error in the name affected the validity of the sequestration orders.

The court found that the error in the name was indeed significant and that it was in the interest of justice to allow the amendment. The court noted that the error did not invalidate the sequestration orders, as the identity of the respondents was not in dispute. The court granted the application to amend the name, stating that the amendment would not prejudice the respondents. Consequently, the court ordered the sequestration of the estates of both respondents and directed that the costs of the application be paid by the respondents.

The final orders of the court included granting leave to amend the name of the first respondent, sequestrating the estates of both respondents, and directing that the applicant’s costs be paid in accordance with the Bankruptcy Act.

Orders

Orders of the court

1.

That the applicant have leave to amend the name of the first respondent by substituting ‘MAURICE’ for the name ‘MORRIS’.

2.

That the estate of JOHN FREDERICK MAURICE LLOYD be sequestrated.

3.

That the estate of RITA BEVERLEY LLOYD be sequestrated.

4.

That the applicant’s costs of and incidental to the application be taxed and paid in accordance with section 109(1)(a) of the Bankruptcy Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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