Re Huggard, T.M.

[1991] FCA 776

NOT FOR EISTRIBUTION

IN TEE FEDERAL C O m	1 1
GP AUS-	1
1 No. VP 850 of 1991

VICTORIA DISTRICT RBG	ISTRY	) )
GENERAL D I V I S M	1
BETWEEN:

TREVOR lIAXWELL HUGGARD

Ex Parte: BOBBIE RENARD .,

' 1 G 6 DEC 1991

AzJlxZ:  Heerey J. JLRAL COURT OF

AUSTRALIA

PLACE:	Melbourne	'\ '	PRINCIPAL
, .	REQISTRY
m:	27 November 1991

EX TElIPORE REASONS FOR JUDGHEW

This creditor's petition has been opposed on a number of grounds.

The first ground is that the bankruptcy notice is perplexing and confusing in that it does not state the date of the judgment on which the bankruptcy notice is based. The bankruptcy notice in fact does state the date of the judgment on which the notice is based, namely a judgment of the County Court at Melbourne on 17 April 1989. That judgment was obtained against the firm Trevor Huggard and Associates. The bankruptcy notice also goes on to recite that by an order of the Supreme Court it was ordered that that judgment be enforceable against the debtor. The date of that order is given ae "the 20 day of notice 1990". To my mind that is clearly a formal defect or irregularity within the meaning of S. 306 (1) of the Bankru~tcv Act. As was said by the majority of the High Court in Kleinwort Benson IAustraliaI Limited v Crowell (1988) 165 CLR 71 at p.79:

could reasonably mislead a debtor ae t o what i s necessary t o

The	authori t ies show that	a bankruptcy	not ice i s a n u l l i t y i f it
f a i l s t o m e e t a requirement	made	essent ia l by the A c t ,	or i f it

comply with the notice:  James v Federal Conmissioner of Taxatiorl

(1955) 93 CLR 631 a t p.644; P i l l a i [l9701 AC a t p.1135. In euch came8 the notice is a nul l i ty whether or not the debtor i n fact is mieled: In R e A Judament ~ i b t o r . 530 of 1908 [l9081 2 KB 474 a t p. 481.

Section 41(2) of the Act does not even make it an essential requirement of the notice that the date of the judgment appear on the notice, but in any event, as I have said, in this case the date of judgment giving rise to the debt does in fact appear. The only error, and it is obviously a typographical one, relates to a further procedural step necessary to enforce that judgment against the debtor. No reasonable person could be confused or perplexed by the terms of the notice. It is clear from the notice what amount is being demanded and what are the consequences of non-compliance.

The next ground relied on was that the bankruptcy notice did not give a full credit for an amount paid by the judgment debtor on 17 December 1990. The notice shows that on that date $24,262.68 was paid. In fact on that day, and this is common ground, an amount of $32,114.49 was paid. The difference between those two amounts was appropriated by the judgment creditor towards other debts, viz amounts owing for costs which had been incurred in the course of litigation between the creditor and the debtor and interest on those

amounts.

It was accepted by Mt Hussey, who appeared on behalf of the debtor, that as a matter of law the creditor was entitled to appropriate part of the $32,114.49 towards amounts other than the judgment debt which was owing. The complaint, however, was that the bankruptcy notice should have explained that such appropriation had been made and indicate why the full amount paid on 17 December 1990 was not being credited.

In my opinion, that complaint does not establish a defect in the notice. It is clear that the amount of- $6205.76 was owing under the judgment and the mere fact that some explanation was not given as to why other amounts paid were not credited to that debt does not have the effect that the correct amount of the debt that was due was not stated.

The next ground relied on was that an official copy of the petition had not been served on the debtor as required by r.l5(b)(i). In fact it appeared from the exhibit to the debtor's affidavit that what was served on him was an official copy within the meaning of r.4(1) in that attached to it was a note in accordance with Form 6 signed and stamped by the Registrar. The fact that the copy of the petition used had also been used an exhibit to an affidavit and had an exhibit note on it, does not mean, in my opinion, that it was not an

official copy within the meaning of the rules.

The last ground relied on was that the affidavit verifying the petition was defective because it was sworn on 12 September 1991 and the petition was not presented until the following day. However, it is clear that the petition was signed on the 12th and was in existence on that day. In my opinion the affidavit verifying its existence was not defective, notwithstanding that the petition was not presented until the following day. As a matter of practicality, it must often happen that it is not possible to present the petition at the

Court until some time after the day on which it is actually	signed.
That being so, I dismiss the various objections taken to the petition and propose to make a sequestration order.
I order that a sequestration order be made against the estate of the debtor. I order that the petitioning creditor's costs of and incidental to the petition in this matter including reserved costs be taxed and paid in accordance with the Bnkru~tcv Act 1966. The date of conunission of the act of bankruptcy is 28 April 1991.

I certify that this and the

preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Solicitor acting as Counsel

for the Judgment Debtor:	~r C C Hussey
Solicitors for the
Judgment Debtor:	Hussey h CO
Counsel for the
Petitioning Creditor:	Mr R L Moore
Solicitors for the
Petitioning Creditor:	Phillips Fox