Re Athans; Ex parte Athans

[1991] FCA 243

Re: PETA ATHANS
Ex Parte ARTEMIS ATHANS
No. B3171 of 1990
FED No. 243
Bankruptcy
29 FCR 302

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Bankruptcy - judgment including interest to be subsequently calculated - interest amount subsequently determined but excluded from bankruptcy notice - statutory interest included in notice wrongly calculated - whether understatement objectively capable of misleading debtor as to requirements for compliance - whether bankruptcy notice based on final judgment or order - judicial discretion to extend time for compliance when appeal against final judgment pending - general discretion to set aside bankruptcy notice discussed.

Bankruptcy Act 1966 (Cth): ss. 40(1)(g), 40(3), 306

HEARING

SYDNEY

#DATE 9:5:1991

Counsel and Solicitors R.I. Goodridge instructed by
for Applicant/Debtor: White Keely and Co.

Counsel and Solicitors D.J. Russell instructed by
for Respondent/Creditor: Messrs Papanicolaou and Co.

ORDER

Upon an undertaking given by the applicant to prosecute with due diligence the appeal to the Court of Appeal of New South Wales against the orders of Bryson J including, if so advised, the seeking of leave to appeal therefrom:

(1) Time for compliance with the bankruptcy notice be extended to 9 August 1991.

(2) The application in so far as it seeks to set aside the bankruptcy notice on the ground that it understates the debt owed to the petitioning creditor be dismissed.

(3) The application in so far as it seeks to set aside the bankruptcy notice on the ground that the judgment given on 24 August 1990 was not a final order or judgment be dismissed.

(4) The application be adjourned until 9 August 1991.

(5) Each party be at liberty to restore the matter to the list on seven days' notice.

(6) There be no order as to costs.

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

JUDGE1

The applicant, Mr Peta Athans, applies to the court to set aside a bankruptcy notice dated 10 October 1990. Alternatively he seeks an adjournment of the present proceedings, pending an appeal to the Court of Appeal in the Supreme Court of New South Wales against the judgment upon which the bankruptcy notice was based.

1. The bankruptcy notice was issued at the request of Mr Athans father, Artemis Athans, and the present proceedings form part of a protracted and it would seem bitter dispute between father and son.

2. The bankruptcy notice refers to a claim by the father "that the sum of $50,000 together with interest thereon at the rate of twenty one (21) percentum per annum from 24 August, 1990 to 31 August, 1990 and at the rate of nineteen (19) percentum per annum from 1 September, 1990 to 9 October, 1990 which amounts to $1,190.40, making a total of $51,190.40" is due by the debtor to his father under a final judgment obtained by the father in the Supreme Court of New South Wales on 24 August…