Re Love, Paul James v Ex Parte Geelong Building Society (in liq) & Anor

[1996] FCA 830

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION                 )    No VP 351 of 1996

BANKRUPTCY DISTRICT IN THE STATE  )

OF VICTORIA  )

RE:PAUL JAMES LOVE

(Judgment Debtor)

EX PARTE: GEELONG BUILDING SOCIETY (In Liquidation) and PYRAMID BUILDING SOCIETY (In Liquidation)

(Judgment Creditors)

CORAM:    Ryan J

DATE:     11 September 1996

PLACE:    Melbourne

REASONS FOR JUDGMENT

RYAN J: The bankruptcy notice in this case clearly requires payment of separate amounts due to each of two judgment creditors. In my view, those amounts became payable under two separate final judgments or final orders in the sense in which those expressions are used in s. 40(1)(g) and s. 41 of the Bankruptcy Act 1966 even though they were apparently embodied in the one instrument enshrining the judgment of the Supreme Court. That was a judgment in the other sense disposing of several questions between the debtor and at least two plaintiffs who were allowed, by the rules of the Supreme Court, to join their separate actions in the one proceeding. In the language of Moulton L.J. in Re A Bankruptcy Notice [1907] 96 L.T. 133:

...when judgments are separate judgments in favour of different classes, they are independent judgment debts for all purposes.  The fact that they result from the same action, whether by reason of a counter-claim or not, does not in any way affect the rights of the parties.

I regard the present case as falling within the principles enunciated in that case and Re Low Ex parte The Argentine Gold Fields, Limited [1891] 1 QB 147, Re Stephenson; Ex parte Cintee Nominees Pty Ltd [1988] 18 FCR 375 and Re Bond; Ex parte Hongkongbank of Australia Limited [1991] 33 FCR 426, esp. at 435 to 436.

Indeed, this case is even stronger than Bond (supra) because, to paraphrase Foster J at 436 of the report of that case, two creditors are seeking to join, in the one bankruptcy notice, judgments debts for separate amounts arising from separate actions, although joined in the one proceeding.  For these reasons the petition must be dismissed.

[After hearing submissions from Counsel his Honour continued]:

In my view, the appropriate order is for an order that the creditor should pay the debtor's costs of the notice of opposition and of the hearing this day.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment of his Honour Justice Ryan.

Associate:

Date:

Counsel for Judgment Debtor      :  Mr T. Irlicht

Solicitors for Judgment Debtor    :  Irlicht & Broberg

Counsel for Judgment Creditors    :  Ms S. Horovitz

Solicitors for Judgment Creditors :  Madgwicks

Date of Hearing                  :  11 September 1996

Date of Judgment                 :  11 September 1996