Geraerts, Hubertus v Slough Estates (Melbourne) Pty Ltd Summary

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

Victoria and procured, on

February 1984, the entry of

a default judgment.

The judgment is

in terms unintelligible, confusing as it

does the verbiage of

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

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

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.

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

Q . B .

6 2 8 . )

The

transactions constituting the cause

action upon which the

judgment was obtained

occurred

during

a period

before

the

expiration of .which the

petitioner's change of name occurred, but

the

first

intimation

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

the

phrase

"formerly

known

Slough

Estates

(Melbourne)

Pty. Limited"

r )

therein the words "Slough Estates

Pty. Ltd".

In the matter of Geraerts, Hubertus v Slough Estates (Melbourne) Pty Ltd, the respondent, Slough Estates (Melbourne) Pty Ltd, a creditor, petitioned for a hearing of a bankruptcy petition against the debtor, Hubertus Geraerts. The case was heard by Jenkinson J in Melbourne on 13 December 1984. The primary issue before the court was whether the debtor's failure to comply with a bankruptcy notice constituted an act of bankruptcy under the Bankruptcy Act 1966. The court had to determine if the misnomer in the bankruptcy notice, which referred to the company by its former name, Slough Estates (Melbourne) Pty Ltd, rather than its current name, Slough Estates Pty Ltd, was significant enough to render the notice invalid.

The court considered that the misnomer did not render the bankruptcy notice invalid. The judgment, which was also affected by the misnomer, was clear in its intent and amount due. The debtor had been served with the bankruptcy notice and was aware of the company's name change. The court concluded that the debtor could not have been misled or confused by the misnomer, as he had been kept informed of the changes through the legal documents served upon him. The court ordered that the title and contents of the petition be amended to reflect the company's current name, Slough Estates Pty Ltd, except where it referred to the former name. The debtor did not respond to the service of the bankruptcy notice or appear at the hearing, leading the court to proceed with the bankruptcy petition.

The court's reasoning was grounded in the principle that a misnomer in legal proceedings does not necessarily invalidate the proceedings if the party affected is not misled or confused by the error. The court also relied on precedents that supported the notion that a party cannot avoid the consequences of a legal proceeding due to a mere misnomer if they were aware of the identity of the true party. The final orders included an amendment to the petition to reflect the correct name of the creditor and proceeded with the bankruptcy petition against the debtor.

Geraerts, Hubertus v Slough Estates (Melbourne) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established