HOVAN v GOYCOLEA-SILVA

[2003] FMCA 65

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HOVAN v GOYCOLEA-SILVA [2003] FMCA 65

BANKRUPTCY – Bankruptcy notice – application to set aside – whether use of the name Local Court Act in place of Local Courts (Civil Claims) Act is sufficient to invalidate a notice – whether insertion of lesser sum claimed for costs and appears in the certificate of taxation invalidates the notice.

Local Courts (Civil Claims) Act 1970
Supreme Court Act 1970, s.95(1)
Acts Interpretation Act 1901 (Cth), s.25C
Bankruptcy Act 1966 (Cth), s.41(5)

Australian Steel Company (Operations) Pty Limited v Lewis [2000] 109 FCA
McDowell v Fox [2002] FMCA 254
Bernard v Valassis [2002] FMCA 285-6
General Motors Acceptance Corp Australia v Marshalls [2002] FCA 1006
Wright v Australia and New Zealand Banking Group Limited [2001] FCA 386 St George Bank Limited v Baldwin [2001] FCA 161

Applicant: GEORGE HOVAN

Respondent: MARIA SOLEDAD GOYCOLEA-SILVA

File No: SZ 1281 of 2002

Delivered on: 18 February 2003

Delivered at: Sydney

Hearing date: 18 February 2003

Judgment of: Raphael FM

REPRESENTATION

Solicitor for the Applicant: Foleys Solicitors

Solicitors for the Respondent: Sally Nash & Co

ORDERS

1. Application dismissed.

2. Extend time for compliance of bankruptcy notice until 28 February 2003.

3. Applicant to pay respondent’s costs pursuant to Federal Court Rules to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1281 of 2002

GEORGE HOVAN

Applicant

And

MARIA SOLEDAD GOYCOLEA-SILVA

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter seeks to set aside a bankruptcy notice issued by the Official Receiver for the Bankruptcy District of New South Wales on 28 August 2002.  A schedule of the bankruptcy notice contains details of the amount of the judgment or order, the legal costs and interest to come to a total debt owing of $20,564.16.  An interest calculation is annexed to the bankruptcy notice which at (c) says:

   “ Interest is claimed pursuant to section 39A of the Local Court Act, the relevant rates of interest pursuant to the Act are as follows:”

   then it gives a table setting out the dates for which interest is calculated, the interest rate pursuant to s.39A of the Local Court Act and the interest amount.  In accordance with the requirements of the form a certificate of judgment, form 49, is also attached.  That indicates that a judgment was registered in the Local Court on 27 July 1999 in the sum of $14,731 which appears to be costs owing by the debtor to the creditor.

2. It says that interest is payable on the judgment debt at the rate prescribed for the purposes of section 95(1) of the Supreme Court Act 1970.  In paragraph 4 of that certificate it says:

   “The judgment creditor has incurred costs of attempting to enforce the judgment recoverable against the judgment debtor in the amount of $3286.81 (this amount includes interest).”

3. The applicant makes two arguments as to why I should set aside his bankruptcy notice, the first is that the notice refers to a non-existent Act of…