Gambotto, L.C. v Napoli Constructions Pty Ltd

[1995] FCA 593

CATCHWORDS

Bankruptcy - failure by debtor to comply with bankruptcy notice - whether notice was defective - omission of the word "or" between paragraphs "(a)" and "(b)" of bankruptcy notice - distinction between formal defects and defect which could reasonably mislead the debtor - s.306(1) Bankruptcy Act 1966 (Cth)

Bankruptcy Act 1966 (Cth) - ss.40(1)(g) and 306(1)

LEANDRO CAMILLO GAMBOTTO and RUTH GAMBOTTO v NAPOLI CONSTRUCTIONS PTY LTD
NP 902 of 1995

Davies J
18 July 1995
Sydney

IN THE FEDERAL COURT OF AUSTRALIA       )
  )
GENERAL DIVISION  )  NP902 OF 1995
  )
BANKRUPTCY DISTRICT OF THE   )
  )
STATE OF NEW SOUTH WALES  )

RE:  LEANDRO CAMILLO GAMBOTTO AND
  RUTH GAMBOTTO

EX PARTE:          NAPOLI CONSTRUCTIONS PTY LTD

2
Coram:        Davies J
Date:          18 July 1995
Place:         Sydney

REASON FOR JUDGMENT

This is the return of a petition for sequestration based on the failure of the debtor to comply with the requirements of a bankruptcy notice (see s.40(1)(g) Bankruptcy Act 1966 (Cth)).

The bankruptcy notice contained one defect.  The word "or" was omitted from between the two paragraphs "(a)" and "(b)" of the bankruptcy notice, which are the alternatives which the debtor was required to comply with if he wished to avoid the commission of an act of bankruptcy.

In Re Wong ex parte Kitson, (1979) 38 FLR 207, Lockhart J held that the omission of the word "or" in a bankruptcy notice could reasonably mislead a debtor and that in that circumstance the notice was invalid and a nullity.

Mr Skinner, counsel for the petitioning creditor, submitted that the law as laid down in Re Wong has been altered by the High Court in Kleinwort Benson Australian Ltd v Crowl (1988) 165 CLR 71. At page 81, Mason CJ, Wilson, Brennan and Gaudron JJ pointed out that, if a defect in proceedings constituted a formal defect or irregularity, then by the operation of section 306(1) Bankruptcy Act, if no evidence was presented of and no claim was made of actual injustice, the defect would be ignored. This is because s.306(1) provides that proceedings under the Act are not invalidated by a formal defect or irregularity unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.

The effect of the judgment of Lockhart J in Re Wong, however, was that the defect was not a formal defect or irregularity, but a defect which could reasonably mislead the debtor and which thereby invalidated the notice.  This distinction was recognised by their Honours in Kleinwort Benson, where at page 81 they said:

"The notice cannot be regarded as capable of misleading and accordingly cannot be said to be a nullity. The understatement thus constituted a formal defect or irregularity which attracts the operation of s. 306(1) of the Act."

The distinction is that, if the defect is capable of misleading a debtor, then it is not a mere formal defect or irregularity which brings s. 306(1) into operation.
In my opinion I should follow the judgment of Lockhart J.  The petition dated 21 April 1995 should therefore be dismissed.

I certify that this and the 2 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:   18 July 1995

Counsel for Napoli Constructions Pty Ltd:             B.J Skinner

Solicitors for Napoli Constructions Pty Ltd:           Bush Burke & Company

Date of Hearing:  18 July 1995

Date of Judgment:  18 July 1995