CHRISTOPHER JOHN GOLDSMITH v. FIRST PACIFIC MORTGAGE LIMITED
No. P3927 of 1992
FED No. 366
Number of pages - 2
Bankruptcy
(1993) 115 ALR 175
(1993) 42 FCR 522
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Davies J(1)
CATCHWORDS
Bankruptcy - appeal from dismissal of petition - failure of bankruptcy notice to specify address at which the judgment debt should be paid - whether omission of words "to the judgment creditor" was fatal defect.
Bankruptcy Act 1966 (Cth) - ss.41(2), 306
In re Howes; Ex parte Hughes (1892) 2 QB 622
Re Stogden; Ex parte Leigh (1985) 2 QB 534
Re Donald Andrew Bunn; Ex parte Marjory Dalziel Bunn (unreported, 7 April 1989) Neaves J
HEARING
SYDNEY, 4 May 1993
#DATE 4:6:1993
Solicitor for the applicant: Miss Glass of Dunhill Madden Butler
ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
JUDGE1
DAVIES J In these proceedings a petitioning creditor, First Pacific Mortgage Limited, seeks review of a decision of a Registrar in Bankruptcy dismissing the petition. The decision was based on the failure of the debtor to comply with the requirements of a bankruptcy notice issued at the request of Five Dock Enterprises Pty Limited, which was served on 17 July 1992 by substituted service pursuant to an order of the Court made on 12 June 1992. There was no appearance for the debtor before the Registrar or at this hearing.
The bankruptcy notice read inter alia:-
"WHEREAS FIVE DOCK ENTERPRISES PTY LIMITED of Watson Erskine and Co, Chartered Accountants of 52 Clarence Street, Sydney (hereinafter referred to as `the judgment creditor') has claimed that the (balance) sum of $207,041.61 together with interest thereon at the rate(s) of fifteen (15) per centum per annum from 4 October 1991 to 18 November 1991 which amounts to $2,978.15 making a total of $210,019.76 is due by you to it/him .. under a final judgment/order obtained by it/him against you in the Supreme Court of New South Wales on the *4th day of October 1991, being a judgment/an order the execution of which has not been stayed: THEREFORE TAKE NOTICE that within fourteen (14) days after 14th July 1992, excluding that date, you are required -
(A) to pay the sum of $210,019.76 so claimed by the judgment creditor.
- OR -
(B) to secure the payment of the sum referred to in paragraphy (sic) (A) to the satisfaction of the Federal Court of Australia or the judgment creditor (or his agent whose name and address .. is RICHARD BOOKER of 11/172 Pacific Highway, North Sydney) or compound the sum so specified to the satisfaction of the judgment creditor (or his agent):"
The issue arises from the form of para (A) therein. Rule 8 of the Bankruptcy Rules requires that a bankruptcy notice shall be…
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- AGLC
- Goldsmith, C.J. v First Pacific Mortgage Ltd [1993] FCA 366 ((1993) 115 ALR 175; (1993) 42 FCR 522)
- Case
- [1993] FCA 366
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the absence of these words constituted a fatal defect, and if the notice was therefore invalid, whether this defect could be rectified through amendment. The court needed to determine if the omission of these words from the notice was sufficient to render it ineffective, and if the defect could be remedied by the petitioner. The court also considered whether the omission affected the respondent's ability to pay the judgment debt.
The court found that the omission of the words "to the judgment creditor" and the address at which the debt should be paid was indeed a fatal defect. The court held that these omissions meant the notice did not comply with the statutory requirements for a valid bankruptcy notice. The omission meant that the notice did not clearly indicate to whom and where the judgment debt was payable. Consequently, the omission was considered to be fundamental and could not be rectified by amendment. The court dismissed the appeal and affirmed the earlier decision to dismiss the bankruptcy petition.
Orders
Orders of the court
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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