Ma S. v Farrow Mortgage Services Pty Ltd (In liq)

[1995] FCA 636

CATCHWORDS

BANKRUPTCY - bankruptcy notice - failure to state address of judgment creditor - not a "formal defect or irregularity"

Bankruptcy Act 1966 ss 41(1)(a), 306
Bankruptcy Rules, r 8

Nugent v Brialkim Pty Ltd (1985) 61 ALR 725 refd to
Re St Leon; Ex parte National Australia Bank Ltd (1994) 54 FCR 371 folld

SOMSAK MA and CHOU MA v FARROW MORTGAGE SERVICES PTY LIMITED (IN LIQUIDATION)

No. NP 1009 of 1995

Coram:           Whitlam J

Place:Sydney

Date:              18 August 1995

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
GENERAL DIVISION  )          NP 1009 of 1995
  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES               )

ReSOMSAK MA and CHOU MA

Ex parteFARROW MORTGAGE SERVICES PTY LIMITED (IN LIQUIDATION)

Coram:Whitlam J

Place:Sydney

Date:18 August 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The creditor's petition be dismissed with costs.

1. The judgment creditor pay the debtors' costs of their application filed 27 July 1995.

Note:Settlement and filing of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
GENERAL DIVISION  )          NP 1009 of 1995
  )
BANKRUPTCY DISTRICT OF NEW SOUTH WALES               )

ReSOMSAK MA and CHOU MA

Ex parteFARROW MORTGAGE SERVICES PTY LIMITED (IN LIQUIDATION)

Coram:           Whitlam J
Place:              Sydney

Date:18 August 1995

REASONS FOR JUDGMENT

Farrow Mortgage Services Pty Limited has presented a creditor's petition under the Bankruptcy Act (1966) ("the Act") against Somsak Ma and Chou Ma ("the debtors"), who are husband and wife, and their son Kang Ma.  The petition relies upon a bankruptcy notice.  The debtors oppose the petition on several grounds, including a ground that the subject bankruptcy notice is a "nullity by reason of the omission in the Bankruptcy Notice of the address of the Judgment Creditor".  Upon the debtors' application, I made an order that the Court determine as a separate decision the following preliminary question:

"Whether the omission of an address of the judgement creditor in the Bankruptcy Notice NN 3712 of 1994 is a defect -

(a)which renders the Bankruptcy Notice a nullity;

(b)which is a formal defect or irregularity which attracts the operation of Section 306(1) of the Bankruptcy Act."

Relevantly s 41 of the Act provides:

"(1) A bankruptcy notice:

(a)shall be in accordance with the prescribed form; and

(b)shall be issued by the Registrar.

(2) The prescribed form of bankruptcy notice shall be such that the notice:

(a)requires the debtor named in it, within a specified time (being the time referred to in subparagraph 40(1)(g)(i) or (ii), whichever is appropriate) to:

(i)pay the judgment debt or sum ordered to be paid in accordance with the judgment or order; or

(ii)secure the payment of the debt or sum to the satisfaction of the Court or the creditor or his agent, if any, specified in the notice or compound the debt or sum to the satisfaction of the creditor or his agent, if any, specified in the notice; and

(b)states the consequences of non-compliance with the requirements of the notice."

Rule 8 of the Bankruptcy Rules provides that, for the purposes of s 41(1)(a) of the Act, a bankruptcy notice shall be in accordance with Form 4. That is a reference to the form so numbered in Schedule 1 to the Rules: see r 4(4).

The Act and the Rules do not contain express provision requiring the address of the judgment creditor to be stated in the bankruptcy notice.  That requirement is contained in Form 4, which simply provides, in what is sometimes called the recital to the bankruptcy notice, for the insertion of the name and address of the judgment creditor.

In the present case an address for the judgment creditor has not been inserted in the bankruptcy notice.  In these circumstances, in Re St Leon; Ex parte National Australia Bank Ltd (1994) 54 FCR 371, Lindgren J held that such a bankruptcy notice does not comply with the Act and the failure to state the address of the judgment creditor is not a "formal defect or irregularity" within the meaning of s 306 of the Act.

Senior counsel for the judgment creditor submitted that the decision of
Lindgren J was erroneous, and he refashioned with his customary ingenuity the submissions rejected by his Honour.  He advanced only two submissions which were, in substance, novel.

First, it was said that the decision in Re Haritos; Ex parte Hill (1968) 15 FLR 378 involved a bankruptcy notice issued under the Bankruptcy Act 1924 and that the repealed legislation differed from the current provisions of the Act and Rules. It is true that there are variations in such wording, but they are inconsequential. Certainly Gibbs J did not rely on any such difference for the conclusion he reached.

Secondly, it was submitted that strict compliance with Form 4 was not required by virtue of s 25C of the Acts Interpretation Act 1901, which provides:

"Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient."

That section is applied to the Bankruptcy Rules by s 46(1)(a) of that Act.  Until 1989 compliance with forms in the Rules was expressly dealt with by r 6(1), which provided:

"Strict compliance with the forms in Schedule 1 is not necessary and substantial compliance, or such compliance as the special circumstances of a particular case allow, is sufficient."

Since that provision has been omitted, it may well be arguable that a "contrary intention" now appears in respect of the requirement that the address of the judgment creditor be inserted and that strict compliance with the form is required in that respect.  However, even if that not be the case, I accept the submission of counsel for the debtors that the total failure to state such an address could not amount to substantial compliance with the form.

I respectfully agree with the judgment of Lindgren J on this question.  I should only wish to add to the authorities cited by his Honour the judgment of Lockhart J, speaking for the Full Court, in Nugent v Brialkim Pty Ltd (1985) 61 ALR 725 as to why the address of the judgment creditor must be stated in order to comply with the prescribed form of the bankruptcy notice.

The preliminary question will be answered: (a) yes; (b) no.  The petition will be dismissed with costs.  The judgment creditor must also pay the debtors' costs of their application filed on 27 July 1995.

I certify that this and the preceding four pages are a  true copy of the reasons for judgment herein of the Hon. Justice A.P. Whitlam

Associate:

Date:                 18 August 1995

Counsel for the debtors:                J.T. Johnson

Solicitor for the debtors:                Sally Nash & Co

Counsel for the judgment creditor:  B.A.J. Coles QC

Solicitor for the judgment creditor:  Minter Ellison

Date of hearing:  4 August 1995