Re Curry, V.E

[1993] FCA 58

5-53 73

JUDGMENT No. ........ ....-... I ......

IN THE BANKRUPTCY DISTRICT OF THE STATE OF OUEENSLAND

Bankru~tcv Notice No. 1712 of 1992

RE: VALERIE EVELYN CURRY

Judament Debtor

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J .
WHERE MADE:	Brisbane
DATE OF ORDER:	2 February, 1993
THE COURT ORDERS :-
l.	That the application to set aside the bankruptcy notice and service of it is dismissed.

1. That the applicant pay the costs of the respondent judgment creditor of and incidental to the application to be taxed.

Note:	Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.

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IN THE BANKRUPTCY DISTRICT OF THE STATE OF OUEENSLAND

Bankru~tcv Notice No. 1712 of 1992

RE: VALERIE EVELYN CURRY

Judament Debtor

corn:	Cooper J	.
PLACE	:	Brisbane
m:	2 February, 1993

EXTEMPORE REASONS FOR JUDGMENT

This is an application by Valerie Evelyn Curry to set aside service of a bankruptcy notice issued out of the registry at Brisbane on 20 November, 1992 and served upon her on 4 December, 1992.

The applicant contends that the notice and service ought to be set aside as an abuse of process. The basis upon

which she makes such a contention lies in the fact that on 15

May, 1992 the present judgment creditor presented a petition

for bankruptcy relying upon an alleged failure of the applicant to do one of the acts specified in section 40(1) (1)

of the Bankru~tcv Act without sufficient cause.

That petition was contested and was heard before Mr. Justice Spender in this Court on 8 October, 1992. His Honour reserved his decision and on 11 December, 1992 gave judgment in favour of the judgment debtor and dismissed the petition.

The bankruptcy notice was therefore issued and

served while the petition was pending in this Court.

The bankruptcy notice which was issued relies upon there being in existence a judgment debt in the sum of $85,201.69 together with costs, being a judgment obtained in the District Court of Queensland at Brisbane on 3 April, 1991. By 20 November, 1993, the appeal processes had been completed in relation to that judgment. As at 20 November, 1992 there were no proceedings in being whereby it was sought to challenge the validity or effect of that judgment.

There is no evidence to suggest that the issuing and serving of the bankruptcy notice was undertaken in bad faith or to embarrass the debtor or as an act of oppression against her. Prima facie, the bankruptcy notice was issued and served for the purpose of seeking to recover payment of the debt or to bring into being an available act of bankruptcy in the event that the judgment creditor was unsuccessful in the petition proceedings in respect of the ground there relied upon. In the absence of conduct which can be characterised as

embarrassing or oppressing a debtor, where objections are

conduct in bad faith or undertaken for the purpose of

taken to the alleged act of bankruptcy in proceedings then pending in the Court there is nothing, in my view, which makes a bond fide recourse to the provisions of the Bankruptcy Act for the purpose of obtaining an unassailable act of bankruptcy, conduct which is an abuse of process of the court.

Accordingly, the applicant has failed to make out that the issue of the bankruptcy notice and its service was an abuse of process.

The applicant does not, in these proceedings, dispute the validity of the bankruptcy notice or the amount in respect of which the notice calls for payment. The applicant does not come before the court and offer to pay and discharge the judgment. Further, there is no suggestion in the material filed by the applicant that the applicant has failed to comply with the provisions of the bankruptcy notice because of the existence of the proceedings then pending before Mr. Justice Spender and for no other reason.

THE COURT ORDERS:-

1.	That the application to set aside the bankruptcy notice and service of it is dismissed.
2.	That the applicant pay the costs of the respondent judgment creditor of and incidental to the

application to be taxed.

I certify that this and the two (2)

preceding pages are a true copy of the reaRons for judgment herein of the Honourable Mr. Justice Cooper.

Date:  22 February, 1993 --

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Associate

Counsel for the Applicant:	Mr. P. Favell
Solicitors for the Applicant:	Radcliff Lather & Buckland
Counsel for the Respondent:	Mr. A. Crowe
Solicitors for the Respondent:	Phillips Fox
Hearing Date:	2 February, 1993