Homeh, J. v NSW Insurance Ministerial Corporation

[1993] FCA 1021

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JUDGMENT No. ......,....,....., ..,... ....,

,IN THE! FEDERAL,	COURT OF AUSIRAUA	1
1 No. NP3440 of 1992 F

~ANICRIJITCY DISlRICT OF

STATE OF NEW SOUTH WALES	1	1
I

m -

Debtor

EX PARTE;	.NSW INSURANCE MINISTERIAL
CORPORATION
Creditor

CORAM:	Beazley J
PLACE-	Sydney
Q‘!dE	9 March 1993  -1 FEB 1994

In this matter the petitioning creditor relies upon an act of bankruptcy, being non- compliance with a Bankruptcy Notice dated 31 July 1992, which required the debtor to pay the sum of $15,475.82 to the Registrar of the District Court, 225 Macquarie Street, Sydney, within 14 days of service of the Bankruptcy Notice upon the debtor.

There appears to be no dispute before me, and certainly Mr. Homeh who today

The Bankruptcy Notice identified the debt as comprising the sum of $11,093.85, together with interest thereon in an amount of $4,381.97, due under a final judgment obtained by the petitioning creditor against the debtor in the District Court of New South Wales at Sydney.

appears in person seemed to understand, that an order for costs had been made against him as a result of proceedings brought by him against the Government Insurance Office (now the NSW Insurance Ministerial Corporation) in the District Court of Parramatta in which he was unsuccessful, resulting in the order for costs

being made and taxed in the amount to which I have referred. However, the

Bankruptcy Notice does not refer to a judgment in the District Court of New South Wales at Parramatta but, as I have said, to a judgment of the District Court of New South Wales at Sydney.

Counsel for the petitioning creditor referred me in the first instance to a judgment of his'Honour Mr. Justice Lockhart in Re Francis: Ex Darte Gartrell (1983) 77 FLR 80

in which his Honour considered the requirements for the validity of a Bankruptcy

Notice. His Honour was first required to consider the provisions of s41 of the

Bankmptcy Act 1966. The present provisions of s41(2)(a)(i) and (ii) are in like form

to those considered by his Honour.

The other relevant provision which his Honour was required to consider was s87(3) of

debt whether payable in one sum or by Instalments shall be payable to the Registrar.	the Disbict Court Act 1973 (NSW) which provided that the amount of every judgment	This sub-section was repealed in 1984 and was replaced by Pt31A of the District Court
Rules 1973. Part 31A r l was essentially in the same terms as s87(3) in that it requued
a judgment debt to be paid to the Registrar.
Counsel for the petitioning creditor relied upon the provisions of Pt43 rr 10A and 10B. Part 43 rlOA(2) sets out, inter alia, the powers of the Court which may be exercised by a Registrar of a proclaimed place. Pursuant to Pt 43 rlOA(3) Parramatta is a proclaimed place. Part 43 rlOB then provided that the Registrar for Sydney had
certain powers, authorities, duties and functions concurrently with a Registrar for any other proclaimed place, being the powers set out in rule 10A as well as in other Parts of the Dktrict Court Rules. However, neither Pt43 rlOA nor the other powers specified in Pt43 cover the functions of the. Registrar under Pt31A or the requirements in respect of the payment of judgment debts thereunder.
In those circumstances I do not consider that the provisions of Pt43 of the Dkmmct
Court Rules provide any assistance to the argument put forward hy the petitioning
creditor, which was that as a result of the amendments to the Dkhct Court Rules and to the provisions of Pt43 to which I have referred, the decision of his Honour Mr. Justice Lockhart in Re Francis: Ex Darte Gartrell ought not to be followed.
Counsel for the petitioning cred~tor also referred me to the decision of Pillai v.
Com~troller of Income Tax [l9701 AC 1124 at 1135, being a decision relied upon by
his Honour Mr. Justice Lockhart in Re Francis: Ex Darte Gartrell. In M it was
held that to determine whether a Bankruptcy Notice was valid it is necessary to
ascertain whether the defect m the Notice is of such a kind as could reasonably mislead a debtor upon whom it was served. If it was, the Notice was not validated by the section notwithstanding that the particular debtor upon whom it was served was not in fact misled. Counsel for the petitioning creditor acknowledged that although there have been decisions of the High Court in relatlon to this area since m, they do not affect the substance of what was there said and what was applied by his
Honour Mr. Justice Lockhart m Re Francis: Ex varte Gartrell.
Therefore, notwithstanding that it is more than likely that Mr. Homeh was not in fact
misled by the Bankruptcy Notice in this case, in circumstances where the Notice refers not only to a judgment obtained in a court where it was not in fact obtained, but also required the judgment debt to be paid to the Registrar in a court in which the judgment debt was not obtained, the defect in the Bankruptcy Notice was of a kind
likely to mislead and therefore is invalid.
In those circumstances, the petitioning creditor is not able to satisfy me that there is a
relevant act of bankruptcy and accordingly, I dismiss the petition.
I certify that this and the preceding 3 pages are a true copy of the Reasons for
Judgment herein of her Honour Justice Beazley.

Associate: /-p
Date:	21 January 1994

Counsel for the Applicant:	Mr J Johnson
Solicitors for the Applicant:	Sally Nash & CO

The Respondent appeared in person

Date of Hearing:  9 March 1993

FEDERAL COURT OF AUSTRALIA 1

GENERAL DMSION	1
J 3 G N K R W DISmIm OF	1 No. NP3440 of 19!Z

=ATJ3 OF NEW SOUTH WALES 1

RE:	JOHN HOMEH
-
Debtor
EX PARTE:	NSW  INSURA . : CE MINISTERIAL
CORPORATION
Creditor

C O R M	Beazley J
JVACE:	Sydney
DATE:	9 March 1993

REASONS FOR EX TEMPORE JUDGMENT

In this matter the petitioning creditor relies upon an act of bankruptcy, being non-

compliance with a Bankruptcy Notice dated 31 July 1992, which required the debtor to pay the sum of $15,475.82 to the Reg~strar of the District Court, 225 Macquarie

Street, Sydney, within 14 days of semce of the Bankruptcy Notice upon the debtor.

The Bankruptcy Notice identified the debt as comprising the sum of $11,093.85,

together with interest thereon in an amount of $4,381.97, due under a final judgment obtained by the petitioning credltor agalnst the debtor in the Distrlct Court of New South Wales at Sydney.

There appears to be no dispute before me, and certainly Mr. Homeh who today