Prudential-Bache Securities (Australia) Ltd v Warner

[1999] FCA 1143

FEDERAL COURT OF AUSTRALIA

Prudential-Bache Securities (Australia) Ltd v Warner [1999] FCA 1143

BANKRUPTCY – creditor’s petition – whether bankruptcy notice on which creditor’s petition based valid – absence of signature of Official Receiver on bankruptcy notice – whether Official Receiver “issued” bankruptcy notice – authority of counter-staff to issue bankruptcy notices – whether absence of signature of Official Receiver mere formal defect or irregularity

WORDS & PHRASES – “issue”

Bankruptcy Act 1966 (Cth), s40(1)(g), s41, s306

Bankruptcy Regulations 1996, reg 4.02(1), reg 4.01

Bankruptcy Rules 1968, r7

Re O’Sullivan; ex parte Bank of New Zealand (1991) 30 FCR 112, not followed
Koon Wing Lau v Calwell (1949) 80 CLR 533, considered

PRUDENTIAL-BACHE SECURITIES (AUSTRALIA) LTD v

DAN WARNER

N 7459 OF 1999

EMMETT J
13 AUGUST 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7459 OF 1999

IN THE MATTER OF DAN WARNER
BETWEEN:	PRUDENTIAL-BACHE SECURITIES (AUSTRALIA) LTD Applicant
AND:	DAN WARNER Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	13 AUGUST 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The Estate of Dan Warner be sequestrated.

2.The Petitioning Creditor’s costs, up to and including 7 July 1999, be taxed and paid in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

3.        The date of the act of bankruptcy is 22 March 1999.

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 7459 OF 1999

IN THE MATTER OF DAN WARNER
BETWEEN:	PRUDENTIAL-BACHE SECURITIES (AUSTRALIA) LTD Applicant
AND:	DAN WARNER Respondent
JUDGE:	EMMETT J
DATE:	13 AUGUST 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me a creditor’s petition under the Bankruptcy Act 1966 (“the Act”) presented by Prudential-Bache Securities (Australia) Ltd (“the Petitioning Creditor”).  By the petition, the Petitioning Creditor seeks a sequestration order in respect of the estate of Dan Warner (“the Debtor”).  The petition was presented on 3 May 1999 and was first returnable before a registrar on 16 June 1999.  On that day, on the application of the Petitioning Creditor, the petition was adjourned to 9.15 a.m. on 7 July 1999.

2. The petition alleges an act of bankruptcy under section 40(1)(g) of the Act, consisting of failure by the Debtor to comply, on or before 22 March 1999, with the requirements of a bankruptcy notice served on 1 March 1999. On 7 July 1999, the petition came before a registrar of the Court. The registrar was concerned whether, in circumstances where it was not signed by or on behalf of the Official Receiver, the so-called bankruptcy notice was a valid bankruptcy notice. The registrar therefore adjourned the petition again, with a view to a hearing before a judge on the question of whether there was a valid bankruptcy notice upon which the petition could be based. The petition has now been referred to me for hearing.

3. After service of the…