Re Green, Marilyn Joy Ex Parte Green, Marilyn Joy

[1984] FCA 407

BBIKRTJPTCY DISTRICT OF THE SOUTHERN 1

DISTRICT ilF THE STT?TE OF OUEENSLAND

RE: MBRILYN J O Y GREEN ( A p p l i c a n t )

EX FARTE: I.lAF:ILYN J G Y GREEN ( A p p l i c a n t ) a n d

- OVERDRIVE PROMOTIOWS FTV LTD !Respondent i

f o r the reupondent

29 October 1984

S. KIFT

ASSXIkTE TO SFEIKtEP. J .

I

407

C A T C H W O R D S

BANKRUPTCY - application to set aside bankruptcy notice - calculation of amount demanded by notice - notice founded on two or more judgments or orders invalid - notice not invalid.

RC: PIhRILYN JOY GREEN

EX PARTE: MhRILYN JOY GREEN (hppllcant) and

OVERDRIVE PROMOTIONS FTY LTD (Respondent)

BANKRUFTCY MOTICE NO. 1482 of 1984

SFENDER J .

BRISBANE

29 OCTOBER 1984

IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY NOTICE

GENERAL DIVISIOM	)	NO. 1482 OF 1984
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF OUEENSLAND )

RE: MARILYN JOY GREEN

M PARTE: MARILYN JOY GREEN (Applicant1 and

OVERDRIVE PROMOTIONS PTY LTD (Respondent)

O R D E R

SPEMDER ORDER: MAKING JUDGE J.

DATE OF ORDER:	OCTOBER	1984	29
WHERE MADE:	BRISBANE

T B COURT ORDERS THAT:

1. Application to strike out the bankruptcy notlce be dlsmissed.

2.

The time within which Marilyn Joy Green

has to comply with the bankruptcy notlce

be extended to 5 November 1984.

3 . The applicant pay the respondent's costs,

to be taxed.

IN THE FEDERAL COURT OF AUSTRALIA )

DIVISION	GENERAL	1	NOTICE	BANKRUPTCY
NO. 1482 OF 1984
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE SThTE OF OUEENSLAND )

RE: MARILYN JOY GREEN

D; PARTE: P1ARILYN JOY GREEN (Applicant) and

OVERDRIVE PROMOTIONS PTY LTD (Respondent)

SPENDER J. 29 OCTOBER 1984

EXTEMPORE REASONS FOR JUDGMENT

This is an application to set aside a bankruptcy notice.

It is part of what I regard as an unedlfyinq history of

lltiqation involving these parties, and I confess my view of the

matter has been somewhat influenced by that history; but, on

analysis, the question really comes down to	a	questlon	of
constructlon of the bankruptcy notice.

The bankruptcy notice has claimed the amount of $5565.02

as being due by Marilyn Joy Green to the judgment creditor, being

"the balance due under a final Judgment and Order obtalned by it

... in the District Court of Queensland held at Brisbane on the

4th February, 1983, belnq a Judgment for ... $6296.92 and an

order that (Marilyn Joy Green) and ... Anthony Christopher Hansen

do pay to the ludqment creditor its costs ... which costs have

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. .

been taxed and certified at . . . $1059.67 being a judgment and

order the execution of which has not been stayed.”.

That is the claim, and the bankruptcy notice then

proceeds “The said sum of ... $5565.02 is calculated as

follows : - ”

abovementioned “The ~udqment 6,296.92

The abovementioned order

f o r costs &.059.67

Sub-total	$7,356.59
Less -

The amount of taxed costs

due and payable to you by

the judgment creditor

pursuant to an order of

the Honourable Mr Justice

this	McGreqor	in
Honourable Court of
Brisbane on the 11th
August, 1983.

1,806.07

Less -

The amount of taxed costs

payable by you and the

sald ANTHOIVY CHRISTOPHER

HANSEN pursuant to an

<)t-dFr of 1113 Honour Judqe

Helman made the In

District Court held at

Brisbane on 17th

December, 1982 and taxed

and certified on 22nd

November, 1983.

$314.50 $1,491.51

Sub-total	$5,865.02
Less -

The amount of costs

taxed and payable to you

3 .

by the Judgment creditor

pursuant to the order of

Honourable	the Mr
Justice McGregor in this
Honourable Court at
Brisbane on 7 th
December, 1983.

$300.00

$ 5 , 5 6 5 . 0 2

Then the bankruptcy notice requires payment of the sum

of $5565 .02	or, In the alternatlve, the securing of the payment
of that sum.

C l y n c J. n I Re Application for Issue of a BankruptCV

Notice; Ex parte Tlnson (1946) 14 A.B.C. 41 at p.43 sald "Now,

it is settled law that two or more judgments or orders cannot be

Included in the one notice". Hi3 Honour referred t o In re Low;

Ex parte The Arqentine Gold Fields Ltd (1891) 1 0 . B . 147, In re

Bassett; Ex parte Lewis ( 1 8 9 5 ) 2 Manson 177 and Re A Bankruptcv

Notice (1906) l4 Manson 133 and concluded at p.43:

"As the bankruptcy notice before me requires

the payment of moneys which became payable in

pursuance of two orders, it is not a valid

notice. "

He a l s o indicated in the circumstances of that case he

was unable t o make an amendment to the bankruptcy notice. ~

In Re Edmunds (1936) 9 A.B.C.l, Lukin J. was concerned

wlth a bankruptcy notice which professed to be based upon a

~udgment obtained m the High Court but the petitloner alsg

4.

included an amount for taxed costs pursuant to an order	of the
Full Court of the State of Victoria.

Lukin J. said at p.3:

"The petitioner obviously has made a mistake

in regard to the amount for whlch he procured

the bankruptcy notice to be issued. He 4as

wrongly included the amount of taxed costs of

the trial of the petition and of the appeal

t o the State Full Court, allowed by that

Court, as if the High Court had made an order

in regard thereto as well as to the costs

incurred on appeal to it.

Thls mistake 1s relied upon by the debtor

respondent here as an irregularity

invalidating the bankruptcy notice, and he

relies on the case of In re Low; Ex parte

mentine Gold Fields Ltd (1891) 1 Q.B. 147,

and other cases following that authoritv - In

re Collier (1891) 8 Mori. 80 at p.83; -In

O.C.S. (a Debtor) (1904) 2 K.B. 161; In re

Bankruptcy Notice (1906) 14 Manson, 133. But

since those cases were decided the English

Bankruptcy Act has been amended... . "

He then referred to the change that has occurred in the

legislation and which is now to be found in sub-s. 4 1 ( 5 ) . He

said in relation to this (at p.4):

I , ,- - -

kqxEded as a bankruptcy notice bared, a5 it

professes to be, entirely on the Hlgh Court's

judgment 'the sum specified' therein 'exceeds

the amount actually due' within the words of

that proviso. The bankruptcy notice does not

refer to the State Full Court judgment. If

it had the bankruptcy notice would have been

Irregular but, as it is, I thlnk I must hold

that this proviso by its wide terms covers

the present case. Therefore in its present

form it is not invalid."

MY Heywortli-Smith, who appeared wlth Mr Carmody for the

I

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applicant to set aside the bankruptcy notice, conceded that there

would here be a valid bankruptcy notlce were there to be no

allowances made from the sum of $7356.59. He further conceded

that, were the bankruptcy notice to have made no reference to the

order of Helman D.C.J.	of $314.50, equally no ob~ectlon	could be
taken to it.

The core of his submissions was that the bankruptcy

notice was founded on two judgments, and that conduct or that

course was impermlsslble.

Reference G?RS made by Mr Harrison Q.C., for the judgment

debtor, to the observations made by Lockhart J. in Re Walsh

(1982) 47 A . L . R . 7 5 1 at pp. 755-756 where his Honour said:

“Before turning to the question whether it is

the time of issue or servlce of a bankruptcy

notice that determlnes the question of

overpayment of the amount itself, I propose

to make some brlef observation pertaining to

this case and generally. The law of

bankruptcy is not intended to protect

rascals, rather it should flush them out and

deal wlth them fairly and according to law.

In recent times there is a growing and

disturbing tendency of unscrupulous debtors

to use the technicalities that traditionally

surround bankruptcy law to deliberately

esplolt the courts and the system they

adminlster. The principles lald down by

judges over many years relating to bankruptcy

notices did not envisage this development.

The courts must not aid the ruthless and

cynical exploitation of the laws of

insolvency by unscrupulous debtors.

I do not suggest for one moment that

bankruptcy statutes should not be construed

othcrwise than according to thelr ordinary

and natural meaning in the liqht of their

evident purpose and guided well by

established principles developed by the

courts. But where the application of these

6 .

principles would necessarlly lead to a manlfest absurdity ur lnju5tlce, thc courLs

I	must strain against it and ensure that the
laws of insolvency are interpreted and
applied firmly and fairly in the interests of
debtors and creditors alike. If this means that some old principles laid down by the courts of yesteryear must go, then so be it.
The law does not stand still, impervlous to
changing tlmes and conditions. If the laws
of bankruptcy are allowed to become the haven
or refuge of the rascal they have utterly
failed the community which they are deslgned
to serve. "

I hasten to add that there is no suggestion here that

Marilyn Joy Green, on any material before me, is a person

properly to be characterized as a rascal or a rogue, nor is there

any suggestlon of a ruthless and cynical exploitation of the law

of insolvency by an unscrupulous debtor. The impresslon I got,

quite frankly, is that there has been a prolonged litlglous game

which has had the effect of postponing the securing of

substantial lustice between the parties and	the aid the courts
can give to that end.

m e n one approaches the construction of the bankruptcy

notice here, in my view it is properly t o be considered a s d

claim based on the judgment given in the Dlstrict Court of

Queensland on 4 February 1983 in an amount of $7356.59. The

bankruptcy notice then proceeds to recite a calculation by which

the balance, a sum of the order of $2,000, is waived on that

particular judgment debt.

It, is true that not all of the amount of the first

judgment of McGregor J. has been waived. Fhat has been allowed

!

7.

off is the amount of $1806.07 less an amount of $314.50.

! I acknowledge that there are difficulties in the method

by which the bankruptcy notice has been expressed; but, in the

light of the concessions which were very fairly and properly made

by Mr Heyworth-Smith. I view thls not as a bankruptcy notice

which is founded on two judgments, but one In whlch'the ~udgment

creditor has allowed to the debtor an amount which does take into

account a contra amount of $314.50.

I do not think this renders the bankruptcy notice

Invalid. Were I of the view, however, that the reference to the

sum of $314.50 did render the bankruptcy notice invalid, I ~7ould

have no hesitation In the clrcumstances of this case in allowlnq

an amendment of the bankruptcy notice to take account of that

fact. But as I say, my view is that the bankruptcy notlce 1s

valid. The application to strike out the bankruptcy notice 1 s

dismissed.

I extend the time within which Marilyn Joy Green has to

comply with the bankruptcy notice to 5 November 1984.

I order that the applicant pay the respondent's costs,

to be taxed.