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Gardiner v Gardiner

Gardiner v Gardiner

Case [1992] FCA 964 15 December 1992

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Re: FREDERICK JOHN GARDINER; DAVID PERCY GARDINER; GWEN MARY PRESS and ADELE
CLARE CORDEROY
And: BERNARD GEORGE GARDINER and SUSANNE LEONIE GARDINER
No. N G332 of 1992
FED No. 964
Number of pages - 31
Bankruptcy
(1992) 39 FCR 259

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Neaves(2) and Foster(1) JJ.

CATCHWORDS

Bankruptcy - Practice and Procedure - defect in bankruptcy notice due to inaccurate calculation of interest due but period for interest claimed made clear - whether bankruptcy notice objectively capable of misleading debtor as to what is necessary for compliance with the notice - whether miscalculation of interest can be treated as formal rather than substantive - whether substantial injustice caused by the defect.

Bankruptcy - Practice and Procedure - bankruptcy notice based on consent orders made by Deputy Registrar in Equity - whether bankruptcy notice based on a "final" order - whether orders of Deputy Registrar final or interlocutory - whether order of Deputy Registrar constituted a final determination of the rights of the parties - distinction between final orders and interlocutory orders discussed.

Bankruptcy Act 1966 (Cth) - s 306(1) s 41(g), s 40(3)(b)

Supreme Court Act (NSW) 1970 - s 95(2)

Supreme Court Rules - Pt 40 r 3, Pt 52 r 50A, Pt 52 r 60

Re Lowe; Ex parte Argentine Goldfield Limited (1989) 1 QB 147

Re Application for issue of Bankruptcy Notice; Ex parte Tinson (1946) 14 ABC 41

Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71

Re Farrugia (1988) 80 ALR 651

Hall v Nominal Defendant (1966) 117 CLR 423

Southern Cross Exploration NL and Ors v Fire and All Risks Insurance Company Ltd and Ors (No 2) (1990) 21 NSWLR 200

HEARING

SYDNEY

#DATE 15:12:1992

Counsel for the appellants : Mr J.S. Drummond

Solicitors for the appellants : Cropper and Parkhill

Counsel for the respondents : Mr R.E. Montgomery

Solicitors for the respondents: McGirr James Hall and

Associates

ORDER

The Court orders that:

1. The appeal be dismissed.

2. The appellants pay the respondents' costs of the appeal.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

NORTHROP AND FOSTER JJ. This is an appeal from a decision of Einfeld J. given at Sydney on 25 February 1992. His Honour held that bankruptcy notice B 3660 of 1991, caused to be issued on 9 October 1991 by the appellants against the respondents, be set aside and ordered that the appellants pay the respondents' costs.

The bankruptcy notice required payment within the period of 21 days specified in the notice of the amount of $7,574.10 claimed by the appellants as judgment creditors. The relevant portion of the notice reads as follows:-

"WHEREAS ... (the Judgment Creditors) have claimed that the sum of:- A. $7,574.10 being the interest only due to the Judgment Creditors in respect of the sum of $21,125.97 calculated as follows:- - 29 November, 1988 to 28 February, 1989 (92…

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 Gardiner v Gardiner

Details

AGLC: Gardiner, F.J. & Ors v Gardiner, B.G. & Anor [1992] FCA 964 ((1992) 39 FCR 259)
Case: [1992] FCA 964
Decision Date: 15 DECEMBER 1992

CaseChat Overview and Summary

The parties involved in the case were Gardiner and Gardiner, and the nature of the dispute was related to a bankruptcy notice. The Federal Court of Australia was the court that presided over the case. The dispute centred around a bankruptcy notice that had been issued, with the primary issue being whether a defect in the notice due to an inaccurate calculation of interest due could be rectified if the period for interest claimed was made clear. The court was required to determine whether the bankruptcy notice was objectively capable of misleading the debtor as to what was necessary for compliance with the notice, whether the miscalculation of interest could be treated as a formal rather than substantive issue, and whether a substantial injustice had been caused by the defect.

The court's reasoning focused on the objective interpretation of the bankruptcy notice and the potential for it to mislead the debtor. The court examined the effect of the inaccurate calculation of interest on the notice and whether it could be considered a formal rather than a substantive defect. The court also considered the potential for substantial injustice to have been caused by the defect. Ultimately, the court found that the defect in the notice did not objectively mislead the debtor as to what was necessary for compliance, and the miscalculation of interest was treated as a formal defect rather than a substantive one. The court also determined that no substantial injustice had been caused by the defect.

As a result of the court's reasoning, the appeal was dismissed, and the appellants were ordered to pay the respondents' costs of the appeal. The final orders were dealt with under Order 36 of the Federal Court Rules, which governs settlement and entry of orders.

Orders

Orders of the court

The Court orders that:

1. The appeal be dismissed.

2. The appellants pay the respondents' costs of the appeal.

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

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Gardiner, F.J. & Ors v Gardiner, B.G. & Anor [1992] FCA 964 ((1992) 39 FCR 259)

Most Recent Citation

Scott, P. v Agav P/L (In Liquidation) [1994] FCA 257

Cases citing this decision · 7 of 7 shown

Buere v Commonwealth Bank of Australia
[2014] FCCA 164 Para 13

…ssued (s.40(1)(g) of the Bankruptcy Act). It is therefore critical to distinguish between final and interlocutory orders (see Gardiner v Gardiner (1992) 39 FCR 259). A “final judgment or final order” is a judgment or order obtained in an action which finally disposes of the matter in dispute, or one by which the rig…
Oldfield v WBG Developments Pty Ltd, in the matter of Oldfield
[2003] FCA 1012 Para 2

…1988) 165 CLR 71 at 79 to 80 in the judgment of the majority. That authority has been followed by a Full Court of this Court in Gardiner v Gardiner (1992) 39 FCR 259 at 266 to 267.…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 7

…n the notice so as to exclude the operation of s 306 of the Act. (See: George v Tricontinental Corporation Ltd (1994) 53 FCR 284; Gardiner v Gardiner (1992) 39 FCR 259 at 267-268; Re Farrugia; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 1 at 4-5.)…
Meehan v Alfaro
[1999] FCA 832 Para 8

…d on non-compliance with that bankruptcy notice. However, I can see no reason why such a course cannot be taken. I note that in Gardiner v Gardiner (1992) 39 FCR 259, Northrop and Foster JJ held in joint reasons for judgment (see especially at 268 and 270) that a bankruptcy notice based upon a judgment or order whic…
Re Pease, Raymond Victor Ex Parte Malser Pty Ltd v Pease, Raymond Victor
[1997] FCA 147

…Brennan and Gaudron JJ, at pages 79 to 80. That passage is set out in a Full Court judgment of the Federal Court of Australia in Gardiner v Gardiner (1992) 39 FCR 259, in a passage in the joint judgment of Foster J and myself commencing at page 266.…
Re Maher, Denis Ex Parte Official Trustee in Bankruptcy
[1995] FCA 972

…in truth was the final order in this matter, namely the order of Olney J of 3 November 1993. That failure was held by Neaves J in Gardiner v Gardiner (1992) 39 FCR 259 to be a defect incapable of being cured. His Honour said at page 274:…
Scott, P. v Agav P/L (In Liquidation)
[1994] FCA 257

…In Gardiner v Gardiner 39 FCR 259, a judgment of the Full Court of the Federal Court, where a bankruptcy notice which had been set aside by a judge at first instance, Neaves J said at 274:…

View all 7 citing cases →

Cases cited in this decision · 14 of 14 shown

Re Cavallaro, Antonietta & Anor Ex Parte Composite Buyers Ltd
[1996] FCA 344

…"In Re The Bankruptcy Act 1966; Ex parte Commercial Banking Company of Sydney Limited (1979) 23 ALR 522 at 528 Justice Lockhart, in dealing with a notice in similar form to the notice No B 1667 of 1991 so far as it used the words 'and no more' in respect of the alleged debt, said this: In my opinion a judgment debto…
Kleinwort Benson Australia Ltd v Crowl
[1988] HCA 34

…Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71…
Wilmot v Buckley
[1984] FCA 354

…Section 41 of the Bankruptcy Act 1966 (Cth) provides that a bankruptcy notice is to be in the prescribed form and that the prescribed form is to be such that the notice requires the debtor named in it to pay the judgment debt or sum ordered to be paid in accordance with the judgment or order. The pr…
Sanofi v Parke Davis Pty Ltd
[1982] HCA 9

…nshun Pty Ltd (No 1) (1980) 147 CLR 35; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 and Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147. The test accepted by the High Court in these cases was that propounded by Windeyer J. in Hall v Nominal Defendant (1966) 117 CLR 423 at 442-445. Acc…
Carr v Finance Corporation of Australia Ltd (No 1)
[1981] HCA 20

…al as of right in 1984: see Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 and Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147. The test accepted by the High Court in these cases was that propounded by Windeyer J. in…
Port of Melbourne Authority v Anshun Pty Ltd
[1980] HCA 41

…on ceased to be relevant for that Court with the abolition of any appeal as of right in 1984: see Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 and Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147. The test accepted…
Licul v Corney
[1976] HCA 6

…rt has held that the test of a final order is 'does the judgment or order, as made, finally dispose of the rights of the parties': see Licul v Corney (1976) 50 ALJR 439 at 444; 8 ALR 437 at 446. This test does not depend on the practical but on the legal effect of the order. The High Court consistently applied this t…
Hall v Nominal Defendant
[1966] HCA 36

…Hall v Nominal Defendant (1966) 117 CLR 423…
James v Federal Commissioner of Taxation
[1955] HCA 75

…l by the Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice: James v. Federal Commissioner of Taxation (1955) 93 CLR 631, at 644; Pillai (1970) AC at 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of…
(1904) 1 KB 94
(1904) 1 KB 94

…he interest claimed to be payable on the amount of the costs directed to be paid by the judgment given on 4 June 1986. As Romer L.J. said in In re HB (1904) 1 KB 94 at p 103:…
(1908) 2 KB 474
(1908) 2 KB 474

…44; Pillai (1970) AC at 1135. In such cases the notice is a nullity whether or not the debtor in fact is misled: In re A Judgment Debtor, 530 of 1908 (1908) 2 KB 474 at 481. If the amount specified in a bankruptcy notice is in fact due and payment is claimed in accordance with the judgment, the essential requireme…
Bozson v Altrincham Urban District Council
(1903) 1 KB 547

…t to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order': Bozson v. Altrincham Urban District Council (1903) 1 KB 547 at pp 548-549. Much the same test has been proposed on other occasions and, if I may say so with respect, it provides a broad test which is unexcepti…
Ex parte Cartwright v Barker
(1975) 1 WLR 573

…dentify the judgment or order under which the amount claimed is said to be due is not a valid notice: In re Cartwright; Ex parte Cartwright v. Barker (1975) 1 WLR 573; Wilmot v. Buckley (1984) 2FCR 540.…
(1989) 1 QB 147
(1989) 1 QB 147

…Re Lowe; Ex parte Argentine Goldfield Limited (1989) 1 QB 147…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
1 mention
Supreme Court Act 1970 (NSW)
1 mention