Metledge v Hopkins

[2020] FCA 561

FEDERAL COURT OF AUSTRALIA

Metledge v Hopkins [2020] FCA 561

File number:

NSD 633 of 2019

Judge:

LEE  J

Date of judgment:

29 April 2020

Catchwords:

BANKRUPTCY – determination of a separate question regarding validity of bankruptcy notice – notice invalid by reason of a failure of creditor to state an address whereby the judgment debtor may make payment for the amount claimed in notice or where he may make arrangements to secure or compound the debt

Legislation:

Bankruptcy Act 1966 (Cth)

Cases cited:

The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915; (2000) 109 FCR 33

Bonds Industries Ltd v Sing [1999] FCA 1055

Croker v Commonwealth of Australia [2010] FCA 1031; 8 ABC(NS) 424

Croker v Commonwealth of Australia [2011] FCAFC 25; 9 ABC(NS) 44

Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71

Nugent v Brialkim Pty Ltd (1985) 61 ALR 725

Re Pugliese; Ex parte v The Chase Manhattan Bank of Australia Limited (1993) 44 FCR 536

Re St Leon; Ex parte National Australia Bank Limited (1994) 54 FCR 371

Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494

Sarikaya v Victorian WorkCover Authority (1997) 80 FCR 262

Date of hearing:

7 April 2020

Date of last submissions:

14 April 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

18

Counsel for the Applicant:

Mr M W Sneddon

Solicitor for the Applicant:

Laliotis Xuereb Lawyers

Counsel for the Respondent:

Mr A E Hopkins

Solicitor for the Respondent:

Tee Legal

ORDERS

NSD 633 of 2019

BETWEEN:

MARY METLEDGE

Applicant

AND:

RICHARD ASHLEY HOPKINS

Respondent

JUDGE:	LEE  J
DATE OF ORDER:	29 APRIL 2020

THE COURT ORDERS THAT:

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

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

1. At the hearing of a creditor’s petition I made an order that a separate issue be determined.  The issue might be thought to be one of arid technicality, but to characterise it in this way is to reflect a misunderstanding of the principled approach to the law of bankruptcy.  For the reasons set out below, the relevant bankruptcy notice (the non-compliance with which is relied upon as the act of bankruptcy in the creditor’s petition) was invalid.  The applicant accepts that in this eventuality, the appropriate order to be made is that the creditor’s petition be dismissed.

2. The bankruptcy notice referred to the applicant’s address twice: first, on page one, where the address of the applicant was notified as being “P. O. Box 226, Strathfield, Sydney (sic), NSW, Australia”; and secondly, on page two, in numbered section 2 (being that part of the approved form of notice dealing with how payment is to be made), the bankruptcy notice provided:

   Payment of the debt can be made to:

   Ms Mary METLEDGE

   P.O. Box 226, Strathfield, Sydney (sic),…