Henderson v Housing Choices South Australia Ltd

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HENDERSON v HOUSING CHOICES SOUTH AUSTRALIA LTD
[2019] SASCFC 92
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Doyle)
29 July 2019
BANKRUPTCY - PROCEEDINGS IN CONNECTION WITH SEQUESTRATION
Application for permission to appeal against the decision of a Judge of this Court. That decision dismissied an application to appeal against a decision of the South Australian Civil and Administrative Tribunal (SACAT) granting the respondent, Housing Choices South Australia Ltd, vacant possession of premises over which the applicant, Ms Henderson, then had exclusive possession.
Held by the Court, refusing permission to appeal:
1. The reasoning of the Judge accords with the applicable provisions of the Bankruptcy Act 1966 (Cth) and judicial authority.
2. The applicant’s grounds of appeal do not challenge the threshold question of standing on which she failed, but repeated complaints against the decision of SACAT.
3. The application does not raise any arguable ground of appeal.
Supreme Court Civil Rules 2006 (SA) r 289; Bankruptcy Act 1966 (Cth), referred to.
Henderson v Housing Choices South Australia Ltd [2019] SASC 121, discussed.

HENDERSON v HOUSING CHOICES SOUTH AUSTRALIA LTD
[2019] SASCFC 92
Full Court: Kourakis CJ, Parker and Doyle JJ

THE COURT: This is an application for permission to appeal against the decision of a Judge of this Court, dismissing Ms Henderson’s application to appeal against a decision of the South Australian Civil and Administrative Tribunal (SACAT) granting Housing Choices South Australia Ltd vacant possession of premises of which she had exclusive occupation, pursuant to a residential tenancies agreement.
Another Judge of this Court refused Ms Henderson’s application for permission on 23 July 2019. The application is renewed pursuant to r 289(4) of the Supreme Court Civil Rules 2006 (SA) (SCR).
The order for vacant possession was made on 6 June 2018. However, Ms Henderson sought an internal (SACAT) review of that order. Those proceedings culminated in hearings before Hughes P, in which, on 5 October 2018, her Honour lifted a stay of the vacant possession order, and, on 29 October 2018, dismissed the review proceedings and affirmed the vacant possession order.
Ms Henderson was declared bankrupt on 13 June 2018. On 21 October 2018, she instituted her application for permission to appeal against the decision of Hughes P lifting the stay, and later foreshadowed an application to amend the appeal to include the order dismissing the internal review proceedings.
On 21 February 2019, an appeal against the bankruptcy order was dismissed by a judge of the Federal Circuit Court.
On 12 July 2019, Peek J dismissed Ms Henderson’s application for permission to appeal against the decisions of Hughes P, on the ground that her proprietary interest in the residential tenancy agreement, and all associated powers to bring legal proceedings with respect to it, had vested in her trustee in bankruptcy.[1]
[1] Henderson v Housing Choices South Australia Ltd [2019] SASC 121.
The reasoning of Peek J accords with the applicable provisions of the Bankruptcy Act 1966 (Cth) and judicial authority. In any event, Ms Henderson’s grounds of appeal do not challenge the threshold question of standing on which she failed, but repeated complaints against the decision of SACAT.
The application does not raise any arguable ground of appeal. We would refuse permission to appeal.

Henderson, the bankrupt, appealed to the Full Court of the Supreme Court of South Australia against an order of a single judge that dismissed his application to set aside a sequestration order made against him. The dispute concerned the validity of a bankruptcy notice issued by Housing Choices South Australia Ltd, the respondent, which formed the basis of the sequestration order.

The Full Court was required to determine whether the bankruptcy notice was valid. Specifically, the court had to consider whether the notice, which stated that the judgment debt was payable to "Housing Choices South Australia Ltd", was sufficiently precise in identifying the judgment creditor, given that the judgment itself was entered in favour of "Housing Choices South Australia Inc". The court also considered whether any discrepancy in the name of the creditor was a mere irregularity that could be amended or if it rendered the notice fundamentally invalid.

The Full Court held that the bankruptcy notice was invalid. The court reasoned that a bankruptcy notice must specify the judgment creditor with sufficient certainty to avoid ambiguity. The difference between "Ltd" and "Inc" was not a trivial or technical defect but a material misstatement that could mislead the debtor as to who the judgment creditor was and to whom payment should be made. The court distinguished this situation from cases where minor typographical errors or insignificant discrepancies had been permitted as amendments, finding that the present discrepancy was of a nature that could not be cured by amendment under the relevant bankruptcy rules.

Consequently, the Full Court allowed the appeal, set aside the sequestration order, and ordered that the bankruptcy notice be set aside.

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