Foster, Re N.S. Taxation, Ex parte Deputy Comm. of

[1988] FCA 303

CATCHWORDS

BANKRUPTCY - Whether a bankruptcy notice	is defective if	it
claim interest on the judgment	debt to a date specified	in

the notice which is earlier than the date of issue of the

notice but does not expressly abandon any claim	for interest
accruing after the date specified	- requirements for validity
of a bankruptcy	notice.

Bankruptcy Act 1966 (Cth): ss. 40, 41, 82

Federal Court of Australia Act 1976 (Cth): S. 25

NEIL S. FOSTER EX PARTE: DEPUTY COMMISSIONER OF TAXATION

P2517 of 1987

SYDNEY
COURT:	SWEENEY, LOCKHART and BURCHETT JJ.

4 JULY 1988

IN THE IEDERAL COURT	OF AUSTRALIA
GENERAL DIVISION

T C I - IN THE STATE No. P2517 of 1987

as NEW SOUTH WALES AND THE

AUSTRALIAN CAPITAL TERRITORY

RE :  NEIL S. FOSTER

Debtor

EX PARTE:  DEPUTY COMMISSIONER OF TAXATION

Respondent

JUDGE8 W I N G ORDER:	Sweeney, Lockhart and Burchett JJ.
DATE OF ORDER:	4 July 1988
WEERE ORDER MADE:	Sydney

MINUTES OF ORDER

The quertion asked	in the case stated pursuant	to sub-6.
25(6) of the Federal Court	of Aurtralia Act 1976	is as
follows:

Is the bankruptcy notice defective by reason only of the	fact that it claims interest to a date prior to the
issue of the notice but does not waive or abandon any
claim for interest accruing after the date specified in the notice?

L.

we answer the question asked in the case as follows:

The bankruptcy notice is not defective by reason only of the fact that it claim. interest to a date prior to the date of the isaue of the notice and does not in terms abandon or waive any claim for interest accruing after the date specified in the notice.

It is unnecessary for the Court to answer any of the

other questions calmed by the stated case.

THE COURT ORDERS THAT:

There be no order for costa with respect to the stated

case.

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

IN THE FEDERAL COURT	OF AUSTRALIA)
GENERAL DIVISION	1

BANKRUPTCY D I S m ICT IN THE STATE ) No. P2517 of 1987

bF NEW SOUTH WALES AND THE )

AUSTRALIAN C APITAL TE RRIT~RY )

RE :  NEIL S. FOSTER

Debtor

EX PARTE:  DEPUTY COMMISSIONER OF TAXATION

Respondent

COURT :	Sweeney, Lockhart and Burchett JJ.
DATE :	4 July 1988
PLACE :	Sydney

REASONS FOR JUDGMENT

THE COURT

On 26 May 1988 this Court heard argument on a stated case in

this mattar of Foster and in a related matter of Alfred Farrugia (No.

P2472 of 1987).	The two matters were heard together	for convenience
and at the rmqumrt of the	parties.	The same question arises in each
care.	As we have given full reasons	for judgment in the matter of

Farrugia we nemd not repeat them in this matter of Foster. The form

of thm bankruptcy notice in Farrugia differs slightly from the form in

Foster in that here the bankruptcy notice claims interest from the

date of judgnent, namely, 5 May 1983 which at 28 April 1987 amounted

to $1,788.58 making a total of judgment and interert of $4,607.28.

.

2 .

The date to which interest is claimed is not specifically stated as i

i s in the Farrugia	notice.	Also,in the case of Foster there was a
delay between the date of application	f r the issue of the notice	and

the date of its issue of several weeks.

In our opinion it is plain on the face of the notice in

Foster that the interest component claimed by the creditor from the

debtor is the sum calculated to the date specified, namely, 20 April

1907. The notice requires the debtor (Foster) to pay the sum of

$4,687.28 as the amount "so claimed" by the creditor or to secure the payment of that sum or compound the sum in order to comply with the notice. It is plain on the face of the notice that, if the debtor pays $4,687.28 or secures or compounds that sum in accordance with the

notice, he will comply with the notice and that, if he does not either

do so or satisfy the Federal Court of Australia as to a counter-claim,

set-off or cross demand equal to or exceeding that amount, he will

commit an act of bankruptcy. There is, therefore, no material

difference between the	notice.	in Farrugia and Foster with respect to
the quemtion before US.

Accordingly, we answer the question in this stated case as

followr: 

The bankruptcy notice is not defective by reason only of the

fact that it claims interest to a date prior to the date of the issue

of the notice and does not in terms waive or abandon any claim for

Interest accruing after the date Specified in the notice.

AS no order for cos t s o f the s ta ted case was sought we make

no order for c o s t s .

I c e r t l f y t h a t t h m and the precedlng

t w o ( 2 ) pages are a true copy of the

Reasons for Judgment herein of the

Court.

Associate	b,rQdd
Dated:	4 July 1988

.

Counsel for Petitioning Creditor:  Hr. h ! .R. Aldridge

Solicitor for Petitioning Creditor: Australian Government Solicitor

-

Date of Bearing:	25 nay 1988
Datee of Judgment:	4 July 1988