Re Gabler, K. v Ex Parte S & B Schwanz Pty Ltd

[1989] FCA 814

-3UDGMENT No. . g ! k . . % r a

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY 1

No. P 537 of 1988

GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE STATE

OF VICTORIA 1

-	RE:	KURT GABLER (Debtor)
EX PARTE:	S & B SCHWARZ PTY LTD (Petitioning Creditor)

coram: Ryan J
Date: 8 November 1989

Place: Melbourne

EX TEMPORE REASONS FOR JUDGMENT

I have come to the clear view chat the petitioning creditor in this matter does have an unpald vendor's lien over the scrip which evidences ownership of the shares which were agreed to be sold to the debtor for $50,000. I also conclude that that lien is a charge or lien on property of the debtor wlthin the definition of "secured creditor" in s.5 of the Bankruptcy Act 1966.

sequestration order without amendment of the Accordingly, in my view, the ground stipulated in of the notice of opposition has been made out. 25 I A N 1990

As I understood him, Mr Wilmoth did not contend that, once the conclusion which I have just indicated had been reached, the petitioning creditor could proceed

However, paragraph 2 of the notice of opposition recites that in any event the debtor has not committed any act of bankruptcy by reason of the fact that the bankruptcy notice had unauthorised alterations to it, namely the additlon of the words:

"'Ar 'This is the annexure marked with the letter

"A" referred to in the affidavit of

sworn the day of 1988.'"

In my view, puttlng the debtor's case as high as it could reasonably be put, the additlon of those words could not have misled or embarrassed the hypothetical, reasonable debtor. The added words intimate no more than that it was proposed to annex the notice of bankruptcy to some affidavit to be sworn and filed subsequently. Whether that intlmatlon of intention was misleading or not, it seems to me that it was not misleading in a material respect so as to deprive the bankruptcy notice of efficacy. Accordingly, I would not uphold ground 2 of the notice of opposition.

[After the foregoing ludgrnent was delivered, Counsel for the

Submissions were then made in support of, and in opposition	petitioning creditor applled for leave to amend the petition.
to, that application whereupon his Honour observed]:

"I consider that the appropriate course is to

grant leave to amend the petition and to adjourn the hearing of the petition. The orders that I make are as follows:

1.  that the petitioner have leave to amend its petition to disclose that it is a secured creditor by reason of the existence of an unpaid vendor's llen over the scrip for

shares in Gabler Baileys Australia Limited, which security it is ready to give up for the beneflt of creditors after adludication;

2.  that an affidavit verifying the petition as so amended be filed and served by 22 November 1989;

3.  that any answering affidavit or affidavits and any further notlce of opposition on which the debtor intends to rely be filed and served by 29 November 1989;

4.   that the hearing of the petition be adjourned to 6 December 1989."

[After those orders were pronounced, Counsel for the debtor applied for an order for costs which was not resisted by Counsel for the petitioning creditor. His Honour then concluded]:

"5. that the petitioning credicor pay the debtor's costs of this day."

I certify that this and the preceding two (2) pages is a true copy of the Reasons for Judgment of his Honour Mr Justice Ryan.

Associate: /W%/

Date:  6 ' . l / . & ?