Gergely v Hammer

[1995] FCA 1200

C A T C H W O R D S

Q BANKRUPTCY - whether bankruptcy notice addressed to two joint debtors only one

~	of whom is served is defective - whether the use of "you" in a bankruptcy notice
l
I	directed to joint debtors is ambiguous - no point of principle.
l
I

..

PRACTICE AND PROCEDURE - whether leave to amend notice of appeal to raise

new issues on appeal should be granted.

GABOR GERGELY v ANDREW HAMMER, JOSEPH HAMMER &

JOLAN FULOP

NG 604195

Davies, Moore & Lehane JJ

28 November 1995

Sydney

IN THE FEDERAL COURT OF AUSTRALIA	1
1
NEW SOUTH WALES DISTRICT REGISTRY	) No G 604 of 1995
GENERAL DIVISION	1

BETWEEN: GABORGERGELY

Appellant

ANDREW HAMMER

First Respondent

JOSEPH HAMMER

Second Respondent

JOLAN FULOP

Third Respondent

m:	Davies, Moore & Lehane JJ
Date:	28 November 1995
Place:	Sydney

MINUTES OF ORDER

i THE COURT ORDERS THAT:

1. Leave to amend the notice of appeal to add proposed grounds 2(c) and 2(d) be refused. Leave to amend the notice of appeal to seek the appointment of a trustee of the bankrupt estate be granted.

2. Mr Maxwell Christopher Donnelly be appointed trustee of the bankrupt estate.

3. The appeal be otherwise dismissed.

4. The appellant pay the respondents' costs of the appeal.

NOTE:

Settlement and entry of orders is dealt with in Order 36 of the Federal

Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	1
)
NEW SOUTH WALES DISTRICT REGISTRY	) No G 604 of 1995
GENERAL DIVISION	1

BETWEEN: GABORGERGELY

Appellant

ANDREW HAMMER

First Respondent

JOSEPH HAMMER

Second Respondent

JOLAN FULOP

Third Respondent

Coram:	Davies, Moore & Lehane JJ
Date:	28 November 1995
Place:	Sydney

REASONS FOR JUDGMENT

THE COURT: In this matter, the Court is of the view that leave to amend the notice

of appeal to add grounds 2(c) and 2(d) should be refused. Mr D. Robinson, counsel for the appellant, Mr Gabor Gergely, submitted that there was a defect in the

bankruptcy notice by reason of the fact that it was addressed to two joint debtors, and by reason of the fact that there was proof only of service upon one. It was further

said that the notice used the word "you" without making it clear what the obligation of W

each debtor was.

However, the bankruptcy notice appears to be in common form and it is not apparent that there is any ambiguity arising from the use of the word "you" in the context where joint debtors would be likely to be familiar with their obligations. As no authority supporting the submissions has been referred to and as the matter is sought to be raised for the first time at this level, we should refuse leave.

A further matter raised was that there was no proof that the second joint

debtor, Mr Hawkins, had failed to comply with the notice. We think think that this is

not a matter which ought to be raised for the first time at an appellate level. The procedures of the Court provide for the filing of notices of contention which raise the

matters which are in issue. This was not so raised. Moreover, the Court does not

have all the material that was before the trial Judge.

Assuming that the trial Judge read an affidavit of proof of debt, taking into account his knowledge that Mr Hawkins had become bankrupt, as appears from Mr Hawkins affidavit, and taking into account that Mr M.R. Aldridge, who is one of the

Bar's most experienced bankruptcy counsel, appeared for the debtor, we think that

the trial Judge was fully justified in drawing the conclusion that there was non-

compliance with the bankruptcy notice.

In any event, as we say, this was not a matter raised below or in the notice of

appeal. For these reasons we think that leave to amend should not now be granted.

The other matters which are raised in the notice of appeal have not been

pressed by Mr Robinson. We should say that, on our examination of the points

raised, that concession was a proper one.

We shall grant leave to amend the notice of appeal in respect of the appointment of a trustee. We are informed that no trustee was appointed by the trial Judge. The appellant seeks the appointment of Mr M.C. Donnelly, who is a well

known trustee in bankruptcy. There is no objection to that course and we accordingly order that Mr Donnelly be appointed trustee of the bankrupt estate. The appeal will otherwise be dismissed with costs and the Court so orders.

I certify that this and the 2 preceding pages

are a true copy of the reasons for judgment herein of

the Court.

Associate:

Date: 28 November 1995

Counsel for the appellant:

D. Robinson

Solicitors for the appellant:

Harper Watson

Counsel for the respondents:

V.R. Gray

V. Heath

Solicitors for the respondents:

John Lloyd & Co.

Date of hearing:

28 November 1995

Date of judgment:

28 November 1995