Re: Janice Lynette Bain

[1998] FCA 195

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - Review of decision of Deputy Registrar rejecting challenge to bankruptcy notice - whether notice required debtor to pay the judgment debt in accordance with the judgment - whether person reading notice would infer that it claimed something in addition to the total of the judgment sum and interest thereon.

Bankruptcy Act 1966 (Cth) s 41(2)(a)(i)

HB, In re [1904] 1 KB 94, refd
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, appl
Morris & Morris, Re; Ex parte Wardley Australia Property Management Ltd [1992] FCA 863, refd

RE JANICE LYNETTE BAIN; EX PARTE OFFSET ALPINE PRINTING LTD
NG 7812 of 1997

DAVIES J
6 MARCH 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7812  of   1997

RE:	JANICE LYNETTE BAIN CREDITOR
EX PARTE:	OFFSET ALPINE PRINTING LTD DEBTOR
JUDGE:	DAVIES J
DATE OF ORDER:	6 MARCH 1998
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal from the decision of the Deputy Registrar be allowed.

1. The order made by the Deputy Registrar be set aside and in substitution thereof it be ordered that the bankruptcy notice be set aside.

1. The judgment creditor pay the costs of this proceeding and the costs of the proceeding before the Deputy Registrar.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7812 of 1997

RE:	JANICE LYNETTE BAIN DEBTOR
EX PARTE:	OFFSET ALPINE PRINTING LTD CREDITOR

JUDGE:	DAVIES J
DATE:	6 MARCH 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is a review of a decision of a Deputy Registrar rejecting a challenge to a bankruptcy notice.  The challenge was brought upon the basis that the bankruptcy notice was capable of misleading the debtor as to what was necessary for compliance with the notice. 

The misleading elements of the notice were said to be first, a statement of the balance due of the judgment debt, $29,152.18, which was $25 more than the balance actually due, although less than the original judgment debt of $28,722.18, of which $595 had been paid.  Secondly, there was a reference in the notice to enforcement costs but no sum was inserted.  Thirdly, there was a claim for interest of $38.97, whereas the interest properly calculated would have amounted to $421.34 or thereabouts.  Finally, there was a statement of a total of $31,708.33 which was not the total of the figures previously stated.  However, the notice did state that total and it specifically required the debtor to pay the sum of $31,708.33 so claimed by the judgment creditor to the judgment creditor or to compound or secure a sum.  The notice commenced:

"WHEREAS:  OFFSET ALPINE PRINTING LTD of (REGISTERED OFFICE) 42 BOOREA STREET LIDCOMBE 2141

(hereinafter referred to as `the Judgment Creditor') has claimed that the sum of $29152.18 being the balance of the Judgment Debt, together with attempted enforcement costs of…