Geraerts, Hubertus v Slough Estates (Melbourne) Pty Ltd

[1984] FCA 492

EX PAHTE: SLOUGH ESTATES (MELBOURNE)

PTY. LIMITED

a Creditor

CORAM : Jenkinson J.

PLACE : Melbourne

DATE : 13 December, 1984

REASONS FOR JUDGMENT

Hearing of a bankruptcy petition.

The petitioner is a company incorporated under Victorian

law. On 27 May 1983 its name was changed from Slough Estates

(Melbourne) Pty. Ltd. to Slough Estates P t y . Ltd., In the former

name it commenced, on 27 January 1584, an action against the

debtor in the Supreme Court of Victoria and procured, on 17

February 1984, the entry of a default judgment. The judgment is

in terms unintelligible, confusing as it does the verbiage of a

judgment and of an order that judgment be entered : "It Is This

Dav Adiudqed that.._the .pl-alntiff enter judgment- agains . him in the .

sum of $79,389.66 and $340 c o s t s . " But it may, I think, be taken

for a judgment that the plaintiff recover against the defendant

$79,389.68 and $3.40 costs. In the same name application was .made

for the issue of a bankruptcy notice in relation to that judgment.

2 .

The bankruptcy notice was issued accordingly. In the same name

the bankruptcy petition was presented on 29 June 1984, founded

upon an act of bankruptcy alleged to have been committed by the

debtor's failing to comply with the requirements of the bankruptcy

notice. But the petition was under the seal of the company in its

then correct name. Opposite the seal, and above the signatures of

a director and the secretary, were typed the word6 "The Common

Seal of Slough Estate6 Pty. Limited, formerly known as Slough

Estates (Melbourne) Pty. Limited, was hereunto affixed in the

presence of ' I .

The petition should not have been presented on behalf of

the company under its former name, nor entitled in that name. I

will order that the title and contents of the petition be amended by substituting for the words "Slough Estates (Melbourne) Pt.y. Limited" wherever occurring therein except in the phrase "formerly

known as Slough Estates (Melbourne) Pty. Limited" therein	the
word6 "Slough Estates Pty. Ltd."

The debtor neither responded to service upon him of the

bankruptcy notice nor appeared on the hearing of the petition.

The bankruptcy notice complied with the requirements of

s.41(2)(a)(i) of the Bankruptcy Act 1966 : it required the debtor to pay the judgment debt "in accordance with the judgment", for the same misnomer marred both judgment and bankruptcy notice.

(Cf. In re Howes. Ex parte Huuhes C18923 2 Q . B . 6 2 8 . ) The

transactions constituting the cause of action upon which the

judgment was obtained occurred during a period before the

3.

expiration of .which the petitioner's change of name occurred, but

the first intimation to the debtor of that change was, .the.

evidence persuades me, -that which was-contained in the .petition. Since then the debtor,, has been served.with copy affidavits .filed in this proceeding which disclose the misnomers and the narrative

I have summarised. In all those circumstances I cannot suppose

that the debtor could have been misled or confused by the misdescription of the judgment creditor in the bankruptcy notice. (Cf. Re Grav; Ex parte Person to Person Financial Services Ptv.

Ltd. 11980) 48 F . L . R . 379.)

I order that the title and contents of the petition be

amended by substituting for the words "Slough Estates (Melbourne)

Pty. Limited wherever occurring therein except in the phrase

"formerly known as Slough Estates (Melbourne) Pty. Limited"

r )

therein the words "Slough Estates Pty. Ltd".