Genovese v Homestyle Pty Ltd
[2004] FMCA 673
•5 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENOVESE v HOMESTYLE PTY LTD | [2004] FMCA 673 |
| BANKRUPTCY – Application to set aside Bankruptcy Notice – whether cross demand exceeded jurisdiction of local Magistrates Court – change of name of creditor prior to judgment – whether creditor also to rely on judgment for purpose of bankruptcy notice – absence of ACN number – relevance. |
Bankruptcy Act 1966, s.40(1)(g), 40(1)(3)(a), 40(3)(d), 41(2)
Local Court Act 1904, s.34(2)
Corporations Act 2001, s.219(3)
Re GEB (1983) 2 KB 340 (CA)
Re Bankruptcy Notice (1934) CH 431
Guss v Johnstone (2000) 74 ALJR 884
Westbrook v National Australia Bank [1999] FCA 892
Smart v Esanda Finance Corp Ltd [2000] FCA 235
Lau v Accord Pacific Properties [2003] FCA 795
Re Gerard Graeme Crisafulli; Ex parte National Commercial Banking Corporation Limited (1985) 11 FCR 272
James v Federal Commissioner of Taxation (1955) 93 CLR 631
Yu v Farrow Mortgage Services Pty Ltd (in liquidation) (1995) 60 FCR 300
Kyriackou v Shield Mercantile Pty Ltd (2004) 207 ALR 393
| Applicant: | HERCOLE PIETRO GENOVESE |
| Respondent: | HOMESTYLE PTY LTD (ACN 008 783 248) |
| File No: | WZ 57 of 2004 |
| Delivered on: | 5 October 2004 |
| Delivered at: | Melbourne (by video link to Perth) |
| Hearing Date: | 28 July 2004 |
| Date of Last Submission: | 6 August 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr A Buchan |
| Solicitors for the Respondent: | Hotchkin Hanly |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
WZ 57 of 2004
| HERCOLE PIETRO GENOVESE |
Applicant
and
| HOMESTYLE PTY LTD (ACN 008 783 248) |
Respondent
REASONS FOR JUDGMENT
In this matter Hercole Pietro Genovese (the applicant) seeks to set aside a bankruptcy notice number 91 of 2004 (the bankruptcy notice) issued by Homestyle Pty Ltd (the respondent) which has been served upon the applicant on 28 April 2004.
The original application to set aside the bankruptcy notice was filed on 18 May 2004 and supported by an affidavit of the applicant sworn the same day. In his affidavit the applicant appears to rely upon two grounds seeking to set aside the bankruptcy notice as follows:
i)the applicant has a cross-demand against the respondent exceeding the amount claimed in the bankruptcy notice as referred to in section 40(1)(g) of the Bankruptcy Act 1966 (the Act); and
ii)the bankruptcy notice is a nullity and invalid on the basis that the person who issued the bankruptcy notice is not a legal entity (or agent thereof) entitled to enter and enforce the judgment.
Specifically, reliance was placed upon the respondent describing itself as "Homestyle Pty Ltd" without the use of its Australian Company Number (the ACN) and that Homestyle Pty Ltd, in any event, had ceased to exist as at 8 July 2003 having changed its name before the relevant judgment was entered on 17 October 2003. It is not disputed that the Respondent changed its name from “Homestyle Pty Ltd” to “BGC Constructions Pty Ltd” on 9 July 2003.
The applicant sought to rely upon an amended application to set aside the bankruptcy notice dated 15 June 2004 and entitled, “AMENDED APPLICATION TO SET ASIDE BANKRUPTCY NOTICE PURSUANT TO SECTION 41 SUB LAW (6A)(b) ON THE GROUNDS CITED AND THAT THE DEBTOR HAS A CROSS DEMAND EXCEEDING THAT OF THE CREDITOR PERSUANT TO SECTION 41 SUB LAW (7) OF THE BANKRUPTCY ACT 1966”. In that amended application the applicant claims the bankruptcy notice should be set aside. In the alternative, he claims the bankruptcy notice is a nullity and it should be struck out.
The applicant is unrepresented. Apart from his affidavit sworn 18 May 2004, he has otherwise relied upon affidavits sworn by him on 15 June 2004 and 26 July 2004. At the hearing of this matter held on 28 July 2004 the applicant relied upon material to which reference has been made and at the conclusion of that hearing the respondent was given the opportunity to provide brief submissions in relation to the issue of the name of the respondent having regard to its change in name and the claimed absence of a reference to the ACN number. Likewise, the applicant was given the opportunity of filing brief submissions by way of reply. The respondent's supplementary submissions were filed on 30 July 2004 and the applicant's reply filed on 6 August 2004. The applicant also had relied upon a list of authorities which he filed prior to the hearing date.
In his affidavit in support of the application the applicant refers to the cross-demand against the respondent which he claims exceeds the amount claimed in the bankruptcy notice. He relies upon s.40(1)(g) of the Act which provides as follows:
“(1)A debtor commits an act of bankruptcy in each of the following cases:
…
(g) if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia—within the time specified in the notice; or
(ii)
where the notice was served elsewhere—within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter-claim, set-off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
…”
It is relevant to note that a bankruptcy notice will be set aside if the debtor has a "counterclaim, set-off or cross-demand equal to or exceeding the amount of the judgment debt" against the creditor and that counterclaim, set-off or cross-demand must be one that is effective against the creditor at the time of the hearing of the application to set aside the bankruptcy notice (see Re GEB (1983) 2 KB 340 (CA); Re Bankruptcy Notice (1934) CH 431 at 440-441 (CA); Guss v Johnstone (2000) 74 ALJR 884 at 891).
The applicant claims he has a cross-demand in the sum of $41,200 which exceeds the amount claimed in the schedule in the bankruptcy notice by $14,787.71.
It is noted that in the bankruptcy notice, a copy of which was provided to the court on the day of the hearing, the creditor relied upon a judgment obtained against the applicant in proceedings in the local court of Western Australia wherein a judgment and tax costs totalled $28,422.69. That judgment was given for the respondent who was the plaintiff in those proceedings and known as Homestyle Pty Ltd. It is noted that those proceedings had commenced in the local court in 2001. It is further noted that the total debt owing arising out of that judgment is claimed to be $26,412.29 in accordance with the schedule to the bankruptcy notice which has deducted payments made or credits allowed since the date of judgment or orders.
The applicant claims that he has a cross-demand consistent with a writ of summons in the District Court of Western Australia which he annexed to his affidavit. In that writ dated 7 April 2004, almost six months after the local court judgment, a claim is made by the applicant against a company "BGC Constructions Pty Ltd". The statement of claim refers to a contract between the applicant and BGC Constructions Pty Ltd for bricklaying services provided by the applicant during June and July 2000. The claim seems to be based upon an agreement of what is described as an assured continuity of work by the applicant with the defendant named in those proceedings. The pleadings do not refer to "BGC Constructions Pty Ltd" as being the company formerly known as Homestyle Pty Ltd.
In his affidavit after annexing the writ of summons allegedly containing details of the cross-demand, the applicant further encloses a document which he describes as -
“… evidence that the employee supervisor for the respondent Mr Brian Pesch agreed to pay the applicant the amount claimed in the Statement of claim.”
That document marked HPG2 appears to be a purchase order dated 31 March 2000 which has a total of $7633.10 and where provision is made for it to be signed for and on behalf of "Homestyle Pty Ltd", there is no signature and nor is there any signature under the part of the document which is referred to as "Declaration: I hereby agree with terms and conditions set out below". Some handwriting appears on the document which reads:
“Brian Pesch agrees to pay $700 per thousand and extras.”
A signature, albeit faint, appears on the document. The document otherwise appears to be addressed to "Phantom Creditor" and refers to "Brickies Labour 742 Burnside Terrace, Canningvale".
The applicant in reliance on that document suggests that it is evidence, as indicated earlier, that the employee supervisor for the respondent, Mr Brian Pesch, agreed to pay the applicant the amount claimed in the statement of claim. Hence, what the applicant seems to be relying upon is a purchase order from Homestyle Pty Ltd for an amount of $7633.10 purporting to be evidence to support his claim in the District Court against "BGC Constructions Pty Ltd".
In further support of his claim under s.40(1)(g) the applicant claims the local court jurisdiction is limited to counterclaims not exceeding $25,000 and that there was a counterclaim relevant in that proceeding and within its jurisdiction which was raised and dealt with to the value of $24,700. The applicant claims the judgment which forms the basis of the bankruptcy notice resulted from a compromise and was entered into as a consent judgment, and further claims that the respondent solicitor "Mr Buchan" made it clear that he would not allow any settlement that did not involve the applicant dismissing his counterclaim of $24,700 against his client.
The respondent in this application relies upon an affidavit of Andrew Walker Buchan sworn 27 May 2004. In that affidavit in relation to the alleged cross-demand the deponent states that the local court proceedings commenced in August 2001 were for the recovery of costs incurred by the respondent in rectifying faulty brickwork performed by the applicant. Annexed to that affidavit is the counterclaim referred to by the applicant which includes a claim for a loss of chance of procuring other work. It is noted that the trial in the local court proceedings commenced on 16 October 2003 and continued on 17 October 2003 and on that day there was a consent judgment entered resulting in the judgment to which reference has been made earlier.
Mr Buchan concedes that the applicant was aggrieved that contracts had been cancelled and that he had been advised that the claimed value of $41,200 would increase the counterclaim accordingly. It is noted that the statement of claim annexed to the District Court writ referred to earlier relates to work at a property in Canningvale in June/July 2000. Mr Buchan deposes that those matters were the subject of the applicant's counterclaim in relation to the local court proceedings and the matters now sought to be raised in the District Court should have been brought within the local court proceedings.
The applicant disputes that his counterclaim is the same as the proceedings currently before the District Court and referred to that court striking out an application that the claim be dismissed.
In relation to the issue of the cross-demand, the respondent referred to the degree to which a debtor needs to satisfy the court to have a bankruptcy notice set aside on the grounds of a counterclaim, set-off or cross‑demand as having been variously formulated in the following manner:
· The debtor must satisfy the Court that he has a genuine demand … But … a demand must be more than bona fide: the court must be satisfied that it has a reasonable probability of success see: Bhagat v Global Custodians Limited [2002]) FCA 223;
· The debtor must show that he or she has a prima facia case, even if there and then he or she does not adduce the admissible evidence which would make out a prima facia case before a Court trying the issues that are involved: see Glew v Harrowell [2003] FCA 373;
· The mere production of a statement of claim in an action alleging facts which, if true, might give rise to such a claim will be insufficient to satisfy the Court as required: see Re Cox (1934) 7 ABC 98.
· The debtor must 'show' the existence of the counterclaim, set‑off or cross-demand by producing evidence: see Glew v Harrowell.
· The Court should be satisfied that the debtor has a claim deserving to be finally determined … a debtor must satisfy the Court that there is sufficient substance to the counterclaim, set-off or cross-demand asserted to make it one which the debtor should, in justice, be permitted to have heard and determined in the usual way: see Glew v Harrowell.
It was submitted that the evidence in the present case before the court from the applicant amounts to a statement of claim filed in the District Court proceedings and the purchase order referred to earlier. That evidence, it was submitted, does not establish that the applicant has a crossclaim deserving to be finally determined. The weight of evidence suggests, according to the respondent's submissions, that the purchase order and the handwritten notices on it were in respect of the contract the subject of the local court proceedings and not in respect of any other contract now alleged by the applicant.
It was further submitted the applicant must show for the purpose of s.40(1)(g) that the cross-demand "could not have been set up in the proceedings in which the judgment was obtained". That is a question to be answered by reference to legal considerations (see Westbrook v National Australia Bank [1999] FCA 892).
It was further submitted that whether or not a cross-claim could be set up does not depend upon whether it could have been set up successfully, but whether it could have been set up as a matter of law (see Smart v Esanda Finance Corp Ltd [2000] FCA 235). It was submitted as a result the fact that the debtor did not set up a claim because he erroneously believed that it exceeded the jurisdiction of the relevant court is irrelevant (see Lau v Accord Pacific Properties [2003] FCA 795). It is trite law and I accept that a counterclaim is a cross-action between the same parties tried at the same trial as the original action even though it may be of an entirely different nature.
Reasoning
The court notes in passing s.34(2) of the Local Court Act 1904 which provides that the local court's jurisdiction in cases of counterclaim shall not be excluded by reason the counterclaim is for an amount of money exceeding the jurisdiction of the court provided the plaintiff does not object in writing within the prescribed time to the court giving relief exceeding that which the court would otherwise have jurisdiction to administer. Hence, as a matter of law the court accepts that the applicant was able to set up the cross-demand in the local court proceedings.
In relation to the issue of a cross-demand, I am satisfied, applying the relevant authorities to which I have been referred, that the court should not permit the bankruptcy notice to be set aside based upon s.40(1)(g) of the Act.
Even a cursory analysis of the chronology and the facts in this case would demonstrate that the applicant has merely produced a statement of claim with a vague assertion as to damages which in turn purport to make a claim which is at least very similar to the claim already dealt with by a consent judgment in the local court.
I am further satisfied, in any event, the counterclaim as matter of law could have been brought in the local court proceedings. In addition, a proper analysis of the documents produced by the applicant, including the purchase order, do not provide any basis upon which it could be concluded that there is proper evidence of the existence of a counterclaim, set-off or cross-demand in an amount exceeding the debt which is the basis of the bankruptcy notice.
The document relied upon by the applicant is one purchase order dated 31 March 2000 for an amount of $7633.10 with some vague assertion that handwriting on that document somehow constitutes evidence of a further agreement and provides support for the applicant's grievance as to lost opportunity for future work. That document relevant to the local court proceedings, in any event, could and should have been raised in support of the arguments now sought to be advanced in the District Court. I note and accept the affidavit evidence provided by the respondent that no attempt was made to do so at that time or indeed even rely upon the document for the purpose now claimed. In any event, on the face of it I cannot see how the document can support the claim now currently being made by the applicant in support of this application to set aside the bankruptcy notice or as evidence that he has indeed a prima facie case arising from the statement of claim in the action in the District Court. The mere production of the statement of claim is not sufficient.
Having regard to my conclusions in relation to the other matters referred to in this judgment, I am satisfied that it would not be a proper exercise of this court's discretion to permit the bankruptcy notice to be set aside pursuant to s.40(1)(g) of the Act. Accordingly, that ground relied upon should fail.
The respondent's name
In his affidavit material the applicant claims that the person who issued the bankruptcy notice was not the a legal entity or entitled to enter and enforce a judgment. The respondent creditor, he claimed, obtained judgment on which the bankruptcy notice is based in the name of what was then a non-existing entity on 17 October 2003 by describing itself as "Homestyle Pty Ltd". The applicant claimed that the Respondent continued to assume the name of a non-existing entity in its request to the local court for certified copy of judgment order or other proceedings and in registering warrants of execution on property held by the applicant in trust for others and did not declare its ACN number.
The applicant attached an historical company extract search from Australian Securities and Investments Commission (ASIC) dated
5 April 2004 which shows that "BGC Constructions Pty Ltd" started on 9 July 2003. The organisation details referred to the period 27 August 1987 to 8 July 2003 as the relevant period of time for Homestyle Pty Ltd which started on 27 August 1987. It is not necessary to refer to the previous name of Springdale-Comfort Pty Ltd, save that it appeared to be in existence for the period 10 December 1974 to 26 August 1987.
The applicant on the chronology based upon the historical company extract asserts that the judgment obtained in the 2001 proceedings having then obtained on 17 October 2003 should not have referred to ‘Homestyle Pty Ltd’ but rather ‘BGC Construction Pty Ltd’ and further, that there should have been reference to an ACN number. He claims that by Homestyle Pty Ltd ceasing to exist as at 8 July 2003 without informing him before judgment was entered on 17 October 2003 that he has been confused and mislead as to whom is the creditor, and that accordingly the bankruptcy notice does not comply with s.40(3)(d), s.41(2) and s.40(1)(3)(a) of the Bankruptcy Act.
In the affidavit of Mr Buchan, to which I referred earlier sworn 27 May 2004, he refers to issues raised by the applicant in relation to the change of name. He confirms that on 9 July 2003 the respondent changed its name from Homestyle Pty Ltd to BGC Construction Pty Ltd. The ACN number in respect of the company remains unchanged. He deposes that on the change of the respondent's name the principal place of business, registered office and telephone and facsimile details remained unchanged and consistent with those which existed during the time the respondent was known as Homestyle Pty Ltd. He further deposes that the judgment obtained in the local court proceedings was issued in the name of Homestyle Pty Ltd and, to his knowledge, the applicant was never advised that the offices of "Hotchkin Hanly" or that the respondent had changed its name.
He annexed to his affidavit a letter from the applicant to the respondent dated 30 April 2004. That letter (exhibit AWB5) was forwarded, according to Mr Buchan, to the respondent's solicitors for the purpose of advice. The letter addressed to "Homestyle Pty Ltd" at its registered office and principal place of business states the following:
“I am in receipt of a bankruptcy notice (page 1 and 2 enclosed).
In accordance with clause 3(b) of the notice I wish to enter into an arrangement for satisfaction of settlement of the debt.
I propose to pay the full amount of $26,412.29 as stated in the notice by way of monthly instalments of $3,000 payable at the end of each calendar month.
The first payment for the month of April is enclosed herewith.
Please advise me within 3 days of your satisfaction of the settlement of this debt.”
Mr Buchan deposes that, in any event, as I understand it, the debtor (although referred to incorrectly as the respondent) was clearly aware of the change of the respondent's name as he deposed to that in his affidavit sworn 18 May 2004 which attached the historical company name extract dated 5 April 2004 (incorrectly referred to as 5 April 2003 in Mr Buchan's affidavit).
The applicant by way of reply claimed that the bankruptcy notice did not follow the terms of the judgment and that the name on the notice is not the present name of the creditor and the debtor has been materially misled. The applicant relies further on the historical company extract to show that the respondent had changed its principal place of business in 1995. In my view, nothing turns on this alteration, save that it is not the case to suggest that the address had been the same throughout the existence of the corporate entity by its various names referred to earlier in this judgment.
The applicant refers to the historical company extract as showing the current address for ‘BGC Construction Pty Ltd’ to be different in the sense that rather than it being 4/22 Mount Street, Perth, it is now 6/18 Mount Street, Perth. He notes that he sent his letter of 30 April 2004 to the address "4/22 Mount Street" and that he has not received a reply and nor has he had the cheque returned. The cheque was for the sum of $3000.
In a further affidavit of Mr Buchan sworn 22 June 2004, apart from dealing with a peripheral issue raised as to the identification of proceedings in this court, which I regard as of no consequence, he then refers to the change of name in further detail. He claims that although the respondent changed its name from Homestyle Pty Ltd to BGC Construction Pty Ltd on 9 July 2003, the registered office of the respondent remained the same. It is evident in a company extract generated on 30 May 2003 which shows the registered offices of Homestyle Pty Ltd as Level 6, 18 Mount Street, Perth which is consistent with the registered office shown on the historical company extract relied upon by the applicant. He claims that despite the cease‑date of 6 February 1995 of the principal place of business of
4/22 Mount Street, the applicant continued to direct correspondence to that address.
A further item of correspondence dated 15 July 2000 from the applicant to the respondent was exhibited along with a reply dated 20 July 2000 from the respondent which likewise has the same address; ‘4th floor, 22 Mount Street’. The point of exhibiting the correspondence relying upon an address which had ceased to be used was to demonstrate, according to Mr Buchan, that at no time during the course of the chain of correspondence was there any difficulty experienced by the applicant communicating with the respondent. It should be noted whilst referring to Mr Buchan's affidavit that on a number of occasions he has incorrectly referred to the respondent when he should have referred to the applicant, although a proper reading of the affidavit made it unnecessary to require that the affidavit be resworn with appropriate corrections as the meaning was clear based in part on the exhibits.
In relation to the absence of the ACN number, the applicant referred to s.219(3) of the Corporations Act 2001 which requires that:
The ACN or registration number to be placed after its name on every public document that is signed, issued or published by the company.
He claims that the bankruptcy notice was issued by Mr Buchan by his signature on page 6 of the bankruptcy notice.
The respondent submits that the question of whether or not a bankruptcy notice was misleading in reciting the name of a creditor that had been changed was considered in a case of Re Gerard Graeme Crisafulli; Ex parte National Commercial Banking Corporation Limited (1985) 11 FCR 272 where Toohey J cited the case of James v Federal Commissioner of Taxation (1955) 93 CLR 631 as follows:
“The Court cannot inquire whether the debtor has in fact been misled or not. In this case it is probable that he was not misled. It is sufficient that he could be misled. But strict compliance with the requisites for the bankruptcy notice is essential to its validity…”
Reference was made to the findings in Crisafulli which it was claimed are equally applicable to the present case for the following reasons:
·This is not a case where the judgment creditor has obtained a judgment and then issued a bankruptcy notice in a different name. The judgment creditor's name has remained consistent in the material before the court.
·The judgment creditor has occupied the same registered offices and retained the same contact details.
·On receipt of the bankruptcy notice the judgment debtor sought to deal with the judgment by letter addressed to the judgment creditor's former name at the address consistently used by the judgment creditor. This did not result in any obstacle or confusion in the notice being dealt with accordingly.
·Section 161 of the Corporations Act 2001 mirrors the provisions of section 5 of the Company Code and to that extent the respondent relies upon it.
It was submitted that where a creditor is a company there is no need for the bankruptcy notice to state the registered office of the creditor. The notice is valid provided an address at which the creditor can be found in order, among other things, to notify the debtor where documents might be served and where the debt might be paid is given (see Eastern Pastoral Co Pty Ltd v McFarlane (Unreported) FCA per Finkelstein J 18 February 1999 where the court states at paragraph 14 the following:
“I do not accept that the failure by a creditor to set out its registered office in a bankruptcy notice is a deficiency in that notice. There is no requirement that a company must specify its registered address in a bankruptcy notice. The notice must state an address at which the creditor can be found in order, among other things, to notify the debtor where documents might be served and where the debt might be paid: In re Beauchamp; Ex parte Beauchamp [1904] 1 KB 572. As I pointed out, such an address was given. Further, there is no evidence to suggest that officers of the petitioning creditor could not be found at the Collins Street address. Thus, it has not been shown that an incorrect address was given.”
It was further submitted that the bankruptcy notice at paragraph 4 provided a payment that could be made to Hotchkin Hanly at Level 8, 28 The Esplanade, Perth WA 6000 and the applicant is well aware of the location of the office having personally served numerous documents at that address.
It was submitted that it is not likely the applicant would have been in any doubt as to the identity of the company with which he was to deal. The bankruptcy notice was not capable of misleading the applicant in the particular circumstances and history of this case according to the respondent's submissions.
In supplementary submissions the respondent submitted the ACN number is not required to be stated on the bankruptcy notice because the notice is not a public document of the creditor for the purpose of the Corporation Law (see Yu v Farrow Mortgage Services Pty Ltd (in liquidation) (1995) 60 FCR 300 at 303F).
It was submitted that if a document claimed to be a bankruptcy notice fails to meet a requirement made essential by the Act or is apt to mislead a debtor, then it would not have been drawn substantially in compliance with the form. If the notice though otherwise in order contains a formal defect or irregularity, then those requirements to the prescribed form may not have been strictly met in every detail. Nevertheless, the form will have been substantially complied with (see Yu v Farrow Mortgage Services Pty Ltd at 305C-D).
It was ultimately submitted that whilst it is an essential requirement for the bankruptcy notice to provide a copy of the judgment relied upon or a certificate of a judgment, it is not essential that the annexed judgment or certificate be free from errors. The question, it was submitted, is whether the mistake in the certificate is one which could reasonably mislead a debtor in the position of the applicant. If a creditor was at all relevant times known by its former name, the inclusion of that name in the bankruptcy notice should be sufficient. It may only cause a debtor confusion to include a multiplicity of names by which the creditor is known or it may be interpolated by the court if it started to use a name not previously used in the proceedings before the local court.
It was submitted that the question is whether the inclusion of the creditor's former name without the inclusion of the present name of the creditor invalidates the bankruptcy notice by reason that it has the capacity to mislead the debtor. It was submitted in the circumstances of this case there is no substantive evidence to suggest that it did or would have been misleading to a judgment debtor who had dealt in person with a judgment creditor for a lengthy period during the course of litigation giving rise to the judgment debt.
Reasoning
In my view, although the issue of the absence of the ACN number has been agitated by the applicant, I do not see the absence of that number in the bankruptcy notice as providing a basis upon which the court should set aside that notice. The bankruptcy notice is not issued by the creditor but rather issued by the Official Receiver at the request of the creditor. Although the request for the document is signed, the fact remains that a bankruptcy notice is not issued by the creditor but rather by the Official Receiver. The absence of the ACN number in those circumstances, in my view, do not provide a proper basis upon which the bankruptcy notice in this case should be set aside.
In the present case I am satisfied that the name used by the creditor was a name used by it at the commencement of the proceedings in the local court and throughout that litigation leading to judgment. It was a name known to the debtor and the address of the creditor was clearly known to the debtor. He was able to in fact communicate appropriately and adequately in order to forward a proposal to satisfy the debt. That correspondence itself demonstrates no confusion at all in the mind of the debtor as to the judgment debt and on whose behalf it was obtained. The debtor clearly knew, having obtained an extract of historical company search prior to writing his letter of 30 April 2004, that there had been a change of name of the creditor. Nevertheless, he continued to address his correspondence to the creditor by its former name and in my view has clearly not been able to demonstrate any confusion or indeed demonstrate that he has been misled. His own correspondence, on the contrary, indicates a clear and adequate understanding.
I am mindful of the principles which apply in relation to the requirements of strict compliance with the prescribed form of the bankruptcy notice (see Kyriackou v Shield Mercantile Pty Ltd (2004) 207 ALR 393. In the present case, however, I cannot see any basis upon which this court should find that the bankruptcy notice did not comply with the requirements made essential by the Act. In this case the bankruptcy notice clearly conveys to the debtor the amount claimed by the creditor and, not only did it give the debtor an opportunity to pay or secure the amount, it is clear he took the opportunity by corresponding on 20 April 2004 in a way which demonstrated that there was no confusion on the part of the debtor.
I otherwise accept and apply the reasoning of Finkelstein J in the matter of Eastern Pastoral Co Pty Ltd and likewise do not accept that any failure to set out a registered office in the bankruptcy notice is a deficiency in that notice. The address provided complies appropriately with the bankruptcy notice requirements.
Any difficulties which arise in relation to the current name under which the creditor operates may need to be addressed if and when any creditor's petition is presented to the court. The absence of the current name on the bankruptcy notice in circumstances where that is consistent with the judgment debt and proceedings leading to that judgment debt, in my view, is not sufficient to provide a basis upon which this court should set aside the bankruptcy notice.
For those reasons it follows that the application should be dismissed with costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 5 October 2004
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