Nugent v Brialkim Pty Ltd

Re: MARK T. NUGENT
And: BRIALKIM PTY. LTD. and OWEN PTY. LTD.
No. QLD G27 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.
Lockhart J.
Beaumont J.

CATCHWORDS

Bankruptcy - bankruptcy notice - statement of address of creditor in bankruptcy notice - authority to receive payment - proof of inadequacy of address.

HEARING

BRISBANE
#DATE 17:7:1985

ORDER

1. The appeal be dismissed;

2. The appellant pay the respondent's costs of the appeal;

3. The date for compliance with the bankruptcy notice be extended to 24 July 1985.
   
   NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

I would also dismiss the appeal with costs and I agree with the reasons given by Lockhart J.

JUDGE2

This appeal from a judgment of a single judge of this Court (Pincus J.) involves a short, but interesting, question of bankruptcy law.

On 14 February 1985 a bankruptcy notice was issued by the Registrar in Bankruptcy for the Bankruptcy District of the Southern District of Queensland against the debtor (Mark T. Nugent) ("the appellant") at the request of Brialkim Pty. Ltd. and Owen Pty. Ltd., two companies which had signed judgment against the appellant (I shall refer to the companies as "the respondents") on 12 June 1984 in the Magistrates Court of Queensland in the sum of $1,760.75. The bankruptcy notice recited that the respondents had "their registered office at c/- Messrs. Lyons, Dunlop and Pratt, 8th Level, MLC Centre, Cnr. George & Adelaide Streets, Brisbane in the State of Queensland".

The notice required the appellant, within fourteen days after service of the notice upon him excluding the date of service, to pay the said sum of $1,760.75 to the respondents or to secure the payment of that sum to the satisfaction of the Supreme Court of Queensland or this Court, or other Court exercising Federal jurisdiction in bankruptcy or to the respondents, or to compound it to the satisfaction of the respondents.

The appellant applied to this Court to set aside the bankruptcy notice on the ground that it failed to give an address at which there was present a person or persons with the authority of the respondents to receive payment or to secure or compound.

The learned primary Judge considered in the light of the decided cases that the relevant question was whether the bankruptcy notice gave an address at which it was reasonably practicable for the appellant to make payment or to offer to secure or compound. His Honour held that the appellant failed to establish that the address of the respondents given in the notice was one at which it was not reasonably practicable to make payment or to secure or compound, and that the application to set aside the notice therefore failed. His Honour dismissed the application with costs. The appellant appealed to this Full Court from his Honour's judgment.

Counsel for the appellant submitted that, for the address which is stated in…