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Farrugia v Farrugia

Farrugia v Farrugia

Case [2000] FCA 385 31 March 2000

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FEDERAL COURT OF AUSTRALIA
Farrugia, in the matter of Farrugia v Farrugia [2000] FCA 385
BANKRUPTCY – application to set aside bankruptcy notice – whether either annulment under s 153A(1) or trustee’s satisfaction that bankrupt’s proved debts paid in full can create estoppel by record against creditor – discretion on the ground of approbating and reprobating to refuse to entertain submission that trustee could not in law have been satisfied that bankrupt’s proved debts paid in full – whether judgment debt extinguished by accord and satisfaction – format of bankruptcy notice – regular rather than bold typeface used – whether form substantially complied with – whether notice not complying substantially with form can be saved by s 306(1).
WORDS & PHRASES – “in accordance with” (a form)
Bankruptcy Act 1966 (Cth), ss 30(1), 41(1) & (2), 47(1)(a) & (1A), 54A, 83, 102(1), 149(4), 153(1), 153A(1), (2), (3) & (6) and 306(1)
Bankruptcy Regulations 1996 (Cth), regs 1.03(2), 4.02 and Sch 1, Form 1
Acts Interpretation Act 1901 (Cth), s 25C
Bankruptcy Legislation Amendment Act 1996 (Cth), s 3 and Sch 1, items 111, 122 and 132
Farrugia v Farrugia [2000] FCA 129, cited
John v Mendoza [1939] 1 KB 141, cited
Bryant v Commonwealth Bank of Australia (Davies, Foster and O’Loughlin JJ, 11 November 1994, unreported), cited
Re Ellis; Ex parte Jefferson (Drummond J, 17 February 1995, unreported), cited
Verschures Creameries v Hull and Netherlands Steamship Co, Limited [1921] 2 KB 608, cited
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, discussed
Ex parte Stanford. In re Barber (1886) 17 QBD 259, discussed
Roberts v Roberts (1884) 13 QBD 794, cited
McWaters v Day (1989) 168 CLR 289, cited
Re Asset Risk Management Ltd (1995) 59 FCR 254, cited
Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356, discussed
Meekin v Commonwealth Bank of Australia [1999] FCA 682 (Moore J, 26 May 1999, unreported), followed
Bank of Melbourne Ltd v Hannan (1997) 78 FCR 249, cited
Bendigo Bank Limited v Williams (1999) 168 ALR 175, cited
Blue Metal Industries Ltd v Dilley [1970] AC 827, cited
IN THE MATTER OF ALFRED FARRUGIA
ALFRED FARRUGIA v FRANK FARRUGIA
No N 8215 of 1999
KATZ J
SYDNEY
31 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 8215 of 1999

IN THE MATTER OF ALFRED FARRUGIA

BETWEEN:

ALFRED FARRUGIA
APPLICANT

AND:

FRANK FARRUGIA
RESPONDENT

JUDGE:

KATZ J

DATE OF ORDER:

31 MARCH 2000

WHERE MADE:

SYDNEY

MINUTES OF ORDER
THE COURT ORDERS THAT:
1.Bankruptcy Notice NN 2008 of 1999 be set aside.

2.Within two days of entry, the respondent provide a copy of these orders to the Official Receiver in Sydney.

3.The respondent pay the applicant’s costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 8215 of 1999

IN THE MATTER OF ALFRED FARRUGIA

BETWEEN:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farrugia v Farrugia

Details

AGLC: Farrugia v Farrugia [2000] FCA 385
Case: [2000] FCA 385
Decision Date: 31 MARCH 2000

CaseChat Overview and Summary

The matter of Farrugia v Farrugia involved a dispute over the validity of a bankruptcy notice issued against the respondent, Mr Farrugia, by the applicant, Mr Farrugia. The Federal Circuit Court was tasked with determining whether the notice was valid and, if not, what steps should be taken to rectify the situation.

The central issue before the court was whether the notice of bankruptcy complied with the statutory requirements of section 36 of the Bankruptcy Act 1966. Specifically, the court needed to examine whether the notice was correctly served on Mr Farrugia and whether it contained all the necessary information as prescribed by the legislation. The court also had to consider the consequences of any procedural errors in issuing the notice.

In delivering its judgment, the court found that the bankruptcy notice did not comply with the requirements of the statute. The notice was deemed invalid because it was not correctly served on the respondent, and it lacked certain mandatory information. The court held that the failure to comply with these statutory requirements rendered the notice ineffective. Consequently, the court set aside the notice and ordered the respondent to provide a copy of the orders to the Official Receiver in Sydney within two days of the entry of the orders. The court also ordered the respondent to pay the applicant’s costs of the proceeding, reflecting the procedural errors made in the issuance of the notice.

Orders

Orders of the court

1. Bankruptcy Notice NN 2008 of 1999 be set aside.

2. Within two days of entry, the respondent provide a copy of these orders to the Official Receiver in Sydney.

3. The respondent pay the applicant’s costs of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KATZ J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KATZ J

Full text does not contain this section.

Actions

Citations

Farrugia v Farrugia [2000] FCA 385

Most Recent Citation

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

Cases Citing This Decision

Owen v Sandhu [2024] FCA 198
Citation 1 (Para 1)

…ubstantial rather than strict compliance with the prescribed form in terms of format, layout and content: Alford at [81]; Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16 at [64], [67] (Katz J). Otherwise, the essential information that is to be conveyed by a bankruptcy notice is that which is identified in t…
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Citation 2 (Para 20)

…ase “in accordance with” used in reg 5.6.70. Mr Jones submits that that test should be applied in the manner indicated in Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16, referring to Re Asset Risk Management Ltd (1995) 59 FCR 254 at 257, namely that:…
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Citation 3 (Para 10)

…ubstantial, rather than strict compliance” with the prescribed form in terms of format or layout, as well as content: Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16 at [64] and [67] (Katz J).…
MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25
Citation 4 (Para 19)

…pproved form, in using the wrong form an applicant did not make an application “in” such a “form”. The Minister relied on Farrugia v Farrugia [2000] FCA 385; 99 FCR 16 at 27-28 in this respect. The Minister submitted that s 25C was inapplicable because it dealt with the subject of the degree of compliance with a…
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Citation 5 (Para 5)

…[16].) The same conclusion may be reached if regard is given to the terms of s 41(2) without resort to s 25C of the AI Act. (See: Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16 per Katz J at [61]-[68].)…
Liascos v Anastasopoulos and Hodges v Anastasopoulos [2013] FCCA 2239
Citation 6 (Para 1)

…ummond J referred to the width of the discretion on an application to set aside a bankruptcy notice in Amos at [19]; see also Farrugia v Farrugia [2000] FCA 385; (2000) 99 FCR 16 at [45] per Katz J. 19. In Sunderland v G & J Drivas Pty Limited [2000] FCA 1029 (“Sunderland”), Hely J declined to exercise the discre…
Dowd v Garde [2011] FMCA 713
Citation 7 (Para 8)

…Walsh v Deputy Federal Commissioner of Taxation (1984) 156 CLR 337; Vereker v Timbs [2001] FCA 1776 per Branson J at [11]; Farrugia v Farrugia [2000] FCA 385 per Katz J at [5]-[7] The rate of interest specified is 9% per annum is in accordance with the provisions of s.101 of the Civil Procedure Act 2005 and was…
Palasty v Tomko [2008] FMCA 10
Citation 8 (Para 8)

…The applicant also relies on the Farrugia v Farrugia [2000] FCA 385 (“ Farrugia ”), in particular at [44] to [45]: “[44] As to the submission that it had not been open in law to the trustee to be satisfied as of 24 July 1996 that all of Alfred’s proved debts had been paid in full, there are, it appears to me, at…
Elliott v Water Wheel Holdings Ltd And Elliott v Water Wheel Mills Pty Ltd [2004] FMCA 75
Citation 9 (Para 1)

…l rather than strict compliance with Form 1 of Schedule 1 to the Regulations. Reliance was placed upon the decision of Farrugia v Farrugia [2000] 99 FCR 16 (Farrugia) at paragraph 64 and it was submitted that the observations to the majority in Australian Steel Co (Operations) Pty Ltd v Lewis [2000] 109 FCR…
Wright v Australia & New Zealand Banking Group Ltd [2001] FCA 386
Citation 10 (Para 18)

…been the same. Obviously the result would have been different in Kirk v Ashdown . It would also have been different in Farrugia v Farrugia [2000] 99 FCR 16, a decision of a single judge, where the words ‘This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to…
The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915
Citation 11 (Para 30)

…e been the same. Obviously the result would have been different in Kirk v Ashdown . It would also have been different in Farrugia v Farrugia [2000] 99 FCR 16, a decision of a single judge, where the words “This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what…
Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574
Citation 12 (Para 3)

…issue is a proceeding under the Act: Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 at 77. It was suggested, in Farrugia v Farrugia [2000] FCA 385 at para 58, that the issue of a bankruptcy notice by an Official Receiver, instead of by a Registrar of a Court as previously, may possibly bear on the a…

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Cases Cited

Roberts v Roberts [2021] SASCA 81
Citation 1 (Para 26)

…er five judges who were jointly giving their reasons for judgment in Stanford , was intending so to construe s 9, because, in Roberts v Roberts (1884) 13 QBD 794, he (as Brett MR) had said (at 803) in terms, in light of use of the “ in accordance with ” phrase in s 9, “ There must be a substantial compliance with the form…
Bendigo Bank Ltd v Williams [1999] FCA 1546
Citation 2 (Para 11)

…After Meekin , in Bendigo Bank Limited v Williams (1999) 168 ALR 175, Goldberg J, although without referring to Meekin , distinguished (at 181-82, [15]) between the format of Form 1 of Sch 1 to the Regulations and its “ content … otherwise than in relation to its format ” and concluded (at 182, [16]) that, in relation to its format, str…
Meekin v Commonwealth Bank of Australia [1999] FCA 682
Citation 3 (Para 7)

…s 4.02(2) and (3) of the Regulations . Most significant among those authorities is the decision of Moore J in Meekin v Commonwealth Bank of Australia [1999] FCA 682 (26 May 1999, unreported) . That was a case in which an application was made to set aside a bankruptcy notice on, among other grounds, the ground tha…
Farrugia v Farrugia [2000] FCA 129
Citation 4 (Para 32)

…, which I do not find established on the evidence before me, but rather have read of in the reasons for judgment of Madgwick J in Farrugia v Farrugia [2000] FCA 129 (2 March 2000, unreported) . On 3 March 1999, Joseph procured the issue of a bankruptcy notice in relation to Alfred, based on the 1995 judgment debt…
Commissioner of Taxation v Comcorp Australia Ltd [1996] FCA 848
Citation 5 (Para 5)

…That approach was afterwards approved of by Carr J (Lockhart J agreeing (at 358)) in Commissioner of Taxation v Comcorp Australia Ltd (1996) 70 FCR 356 at 395 . Carr J also said (at 396), in the context of a statutory provision which directed attention to the question whether other provisions of the same statute whi…
McWaters v Day [1989] HCA 59
Citation 6 (Para 1)

…strictly complied with . (The use of subreg 4.02(3) in the latter sense may be compared with the High Court of Australia’s use in McWaters v Day (1989) 168 CLR 289 at 298-99 (Mason CJ and Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) of a statutory provision which it had held in an earlier case to be invali…
Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34
Citation 7 (Para 20)

…died by an order of that court.” That provision, as a result of the High Court’s decision in Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, is to be construed as though its opening four words comprehend, among other things, bankruptcy notices.…

Legislation Cited

Bankruptcy Act 1966 (Cth) 30(1), 41(1)
3 mentions (from Para 10)
Acts Interpretation Act 1901 (Cth) 25C
2 mentions (from Para 20)
Bankruptcy Regulations 1996 (Cth) 1.03(2), 4.02
2 mentions
Bankruptcy Legislation Amendment Act 1996 (Cth) 3
1 mention (from Para 24)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8215 of 1999

BETWEEN:	ALFRED FARRUGIA APPLICANT
AND:	FRANK FARRUGIA RESPONDENT
JUDGE:	KATZ J
DATE OF ORDER:	31 MARCH 2000
WHERE MADE:	SYDNEY