Parianos v Lymlind Pty Ltd

[1999] FCA 684

FEDERAL COURT OF AUSTRALIA

Parianos v Lymlind Pty Ltd [1999] FCA 684

BANKRUPTCY – Bankruptcy notice founded on a judgment given in a foreign currency – conversion calculation not in accordance with Bankruptcy Regulations, reg 4.04 – Whether reg 4.04 creates an essential requirement for a bankruptcy notice

Bankruptcy Act 1966 (Cth), s 41(2A), 41(2B), 41(2C), 41(5), 41(6A)
Bankruptcy Regulations, regs 4.01, 4.02, 4.04(1), 4.04(2), 4.04(3)
Statute Law (Miscellaneous Provisions) Act (No 2) 1985 (Cth), Schedule 1

Bankruptcy Legislation Amendment Act 1996 (Cth), Schedule 1

Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, followed
James v Federal Commissioner of Taxation (1955) 93 CLR 631, cited
Re Walsh Ex parte Flying Tiger Line Inc (1985) 7 FCR 579, cited
Miliangos v George Frank (Textiles) Ltd [1976] AC 443, cited

Maschinenfabrik v Altikar Pty Ltd [1984] 3 NSWLR 152, cited.

Re Ikin; Ex parte Same & Lamborghini Tractors of Australia Pty Ltd (1985) 4 FCR 582, cited

Re Bond; Ex parte HongKongBank of Australia Ltd (1991) 33 FCR 426, cited
Re Bond; Ex parte HongKongBank of Australia Ltd (1991) 34 FCR 447, cited
Bond v HongKongBank of Australia Ltd (1992) 34 FCR 453, cited

GEORGE PARIANOS v LYMLIND PTY LIMITED & ORS

N 7276 OF 1999

JUDGE:         SACKVILLE J
PLACE:         SYDNEY
DATE:           28 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7276 OF 1999

BETWEEN:	GEORGE PARIANOS Applicant
AND:	LYMLIND PTY LIMITED, ANAGYROS PARIANOS, MARGUERITA PARIANOS Respondents
JUDGE:	SACKVILLE J
DATE OF ORDER:	28 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Bankruptcy Notice No NN 2750 of 1998, which was served on the applicant on 18 February 1999, be set aside.

2.The respondents pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7276 OF 1999

BETWEEN:	GEORGE PARIANOS Applicant
AND:	LYMLIND PTY LIMITED, ANAGYROS PARIANOS, MARGUERITA PARIANOS Respondents

JUDGE:	SACKVILLE J
DATE:	28 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Issues

1. This is an application to set aside a bankruptcy notice served on the applicant (“the debtor”) on 18 February 1999. The application was filed within the twenty-one day period provided for compliance with the notice: see s 41(6A) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”).  The time for compliance with the bankruptcy notice has been extended until delivery of judgment in these proceedings.

   The Bankruptcy Notice

2. The bankruptcy notice served on the debtor claims that he owes the respondents (“the creditors”)

   “a debt of AUS$1,685,272.47, as shown in the Schedule headed ‘Australian dollars’ which amount is the equivalent of 1,422,369.98 Swiss Francs shown in the schedule headed ‘Schedule of Swiss Francs’ and pursuant to Regulation 4.04 Bankruptcy Regulations, payment can be made in that foreign currency or in the equivalent Australian currency.”

3. The bankruptcy notice did not contain a schedule headed “Schedule…