Re Hicks, T. v Ex parte Schweikert, G

[1985] FCA 467

Re: TERRI HICKS
Ex Parte: GREGORY MALCOLM SCHWEIKERT
No. QLD PET 659 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN
DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - creditor not named in judgment - judgment under Residential Tenancies Act 1975 (Q) - identification of judgment creditor by evidency aliunde.

Bankruptcy Act, s.40(3)(d)

Residential Tenancies Act 1975 (Q), ss.23, 27

Magistrates Courts Rules 1960 (Q), r.187(2), Form M.C. 54

HEARING

BRISBANE
#DATE 18:9:1985

ORDER

1. I find the act of bankruptcy alleged in the paragraph numbered four of the petition.

2. I am satisfied of proof of the other matters of which the Act requires proof.

3. I note that no registered trustee has consented to act as trustee of the estate of the debtor.

4. I make a sequestration order against the estate of the debtor, Terri Hicks, and order that the petitioning creditor's costs of and incidental to this petition be taxed and paid in accordance with the Bankruptcy Act 1966.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This is an uncontested hearing of a bankruptcy petition presented by Gregory Malcolm Schweikert. The certified copy of the final judgment by which the petitioner claims to have become a judgment creditor of Terri Hicks, the person alleged to be the judgment debtor appears to show that judgment was entered in favour of Catherine Patricia Barker, not Gregory Malcolm Schweikert. That judgment was entered "for the landlord" against Terri Hicks as defendant, in an action where the sole plaintiff was Catherine Patricia Barker.

1. Judgment was entered in accordance with r.187(2) of the Magistrates Courts Rules, 1960 (Q), for the sum of $1,400 in respect of the claim, and $156.50 for costs. The form required to be used to enter judgment under that rule is Form M.C.54 which, as it appears in the Magistrates Court Rules, is as follows:-
   
   

"JUDGMENT UNDER PART XVIII

(Rule 187 (2))

(General Title - Form 1)

Whereas on the day of , 19 , it was adjudged by the Magistrates Court at that the plaintiff (defendant or as the case may be) do recover against the amount of ($ for ) (and $ for costs) (or otherwise as adjudged or ordered).

And it was ordered that the defendant do pay the same (specifying instalments or as the case may be).

Judgment is hereby entered for (the amount of $ for ) (and) (the amount of $ for costs).

Dated at , this day of , 19 .

Registrar"

1. The form actually used was one printed by the Government Printer, Brisbane, which purportedly reproduces the form as set out in the rules, and merely requires the appropriate spaces to be filled in. However, the form as printed leaves no space between the word "that" in the second line of the body of the form, and the words "the plaintiff". This trivial error seems to have led to the present difficulty.

2. An affidavit by Catherine Patricia Barker proves that the "landlord" referred to in the certified copy of the judgment is Gregory Malcolm Schweikert, not herself. She also swears as follows:-
   
   

"I was the solicitor and agent for the petitioning creditor in bringing proceedings against the debtor in the Magistrates Court at Holland Park. Annexed hereto and marked with the letter "B" is a copy of the letter of authority signed by the said Gregory Malcolm Schweikert which authorised me to act as his agent in proceedings by him against Terri Hicks under the Residential Tenancies Act, 1975."

1. The Residential Tenancies Act, (1975), (Q), as its name implies, is an Act relating to tenancies of dwelling houses. Part IV of the Act deals with summary recovery of possession. Section 23(1) permits the landlord "or his agent" to commence proceedings for recovery of possession by signing a complaint. Once the complaint is filed, a justice may issue a summons thereon directed to the tenant, requiring him to answer the complaint and to show cause why a warrant to eject him from the dwelling-house should not issue. The hearing of the complaint is then conducted in the name of the complainant (see ss.23(2), 23(3) and 23(4)(b)).

2. Catherine Patricia Barker annexes to her affidavit an authorisation in writing signed by the landlord authorising her to act as his agent in the proceedings against Terri Hicks.

3. Section 27(1) of the Act provides:-
   
   

"In a complaint pursuant to this Act for the recovery of possession of a dwelling-house, it may be joined as a further matter of complaint that the defendant is indebted to the landlord for rent or compensation for use and occupation or both in respect of that dwelling-house.

Such further matter of complaint shall be set out in a separate paragraph in the complaint."

1. Section 27(4) of the Act provides:-
   
   

"In respect of the further matter of complaint, the court shall upon the hearing thereof order the defendant to pay to the landlord such amount, if any (but not exceeding the amount in respect of which a Magistrates Court constituted under the Magistrates Court Act 1921-1975 has for the time being jurisdiction), as it determines to be payable and unpaid in respect of the indebtedness the subject of the further matter of complaint."

As a matter of law, judgment for rent or compensation upon a complaint by an agent of a landlord under the Residential Tenancies Act, 1975, (Q), must be entered in favour of the landlord, although he is not a party to the proceeding. That occurred here. The petitioning creditor is a person who is for the time being entitled to enforce a final judgment or final order for the payment of money (s.40(3)(d)) and a bankruptcy notice in regular form was issued. The fact that the notice is in regular form distinguishes this from misnomer cases such as Re Gray; ex parte Peson to Person Financial Services Pty. Ltd. (1980) 48 FLR 379, and makes it unnecessary to consider whether or not the notice read with a certified copy of the judgment could have misled the debtor. Accordingly:-

1. I find the act of bankruptcy alleged in the paragraph numbered four of the petition.

2. I am satisfied of proof of the other matters of which the Act requires proof.

3. I note that no registered trustee has consented to act as trustee of the estate of the debtor.

4. I make a sequestration order against the estate of the debtor, Terri Hicks, and order that the petitioning creditor's costs of and incidental to this petition be taxed and paid in accordance with the Bankruptcy Act 1966.