Re: Maddox; Ex Parte: Maddox v Jenkins - [1987] FCA 220

Re: BARBARA MADDOX, SIMON MADDOX and VICTOR MADDOX
Ex parte: SIMON MADDOX
And: DEBORAH JENKINS and HENRY HUDSON
No. ACT B16 of 1987
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Neaves J.

CATCHWORDS

Bankruptcy - bankruptcy notice - Application that bankruptcy notice be set aside - Notice based on judgment against three individuals carrying on business in partnership under a business name - Notice addressed to all partners but served on one only - Whether bankruptcy notice defective in form.

Bankruptcy - Bankruptcy notice - Application that bankruptcy notice be set aside or, alternatively, that the time for compliance with its requirements be extended - Appeal pending against judgment in respect of which bankruptcy notice issued - Whether appeal is a proceeding to set aside the judgment within s.41(6A)(a) of the Bankruptcy Act 1966 (Cth) - Discretion under s.41(6A)(b) exercised to extend time for compliance with the requirements of the notice pending determination of appeal.

Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(1), (2) and (6A) Bankruptcy Rules, Rule 8 and Schedule 1, Form 4

HEARING

CANBERRA

#DATE 12:5:1987

Councel for the applicant: Mr S.L. Walmsley

Solicitors for the applicant: Reed & Co.

Councel for the respondents: Mr R.C. Refshauge

Solicitors for the respondents: Macphillamy Cummins & Gibson

ORDER

Declares that the bankruptcy notice No. ACT B 16 of 1987 is not invalid as being defective in form.

Orders that the application to set aside bankruptcy notice No. ACT B 16 of 1987 be adjourned generally.

Orders that the time for compliance by the applicant with the requirements of bankruptcy notice No. ACT B 16 of 1987 be extended until further order conditionally upon the appeal to the Supreme Court of the Australian Capital Territory in matter No. SCA 1 of 1987 being prosecuted with all due diligence.

Orders that any party have liberty to restore the application filed herein on behalf of Simon Maddox on 10 April 1987 to the list for hearing on a day which will permit the giving of seven days' notice to the other parties.

Orders that the costs of all parties be reserved.

Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.

JUDGE1

This is an application by Simon Hulett Maddox ("the applicant") for an order that a bankruptcy notice served on him on 1 April 1987 be set aside or, alternatively, that the time for compliance with the notice be extended until 13 July 1987. The application was filed on 10 April 1987. As an interim measure the time for compliance with the notice has been extended until further order.

The bankruptcy notice was issued by a Deputy Registrar in Bankruptcy on 17 March 1987 on the application of Deborah Jenkins and Henry Hudson ("the respondents"). It is based on a judgment obtained by the respondents in the Magistrates Court of the Australian Capital Territory on 27 January 1987 in proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1987] FCA 220
Decision Date: 12 MAY 1987

CaseChat Overview and Summary

Simon Maddox, the applicant, sought to have a bankruptcy notice set aside, which was issued against him based on a judgment against three individuals carrying on business in partnership under a business name. The notice was addressed to all partners but served only on Maddox. The application was heard in the Federal Court of Australia. The central issue before the court was whether the bankruptcy notice was defective in form due to being addressed and served only to one partner of the business.

The court examined the requirements of the Bankruptcy Act 1966, specifically section 45(1) which mandates that a bankruptcy notice must be addressed to the debtor and served on them. Here, the notice was addressed to all partners but only served on Maddox. The court needed to determine if this constituted a defect that would render the notice invalid. The court concluded that while the notice was not ideal in its form, it did not reach a conclusion that it was entirely defective such that it could be set aside. The court reasoned that the notice, despite being served on one partner only, still met the statutory requirement of being addressed to all partners, and thus did not render the notice invalid.

The court decided that the notice was not invalid due to its form. It further ordered the application to set aside the notice be adjourned generally, and extended the time for compliance with the notice until further order, contingent upon the appeal to the Supreme Court of the Australian Capital Territory being pursued diligently. The court also granted liberty to restore the application to the list for hearing, provided all parties were given seven days' notice. Finally, the costs of all parties were reserved pending further determination.

Orders

Orders of the court

Declares that the bankruptcy notice No. ACT B 16 of 1987 is not invalid as being defective in form.

Orders that the application to set aside bankruptcy notice No. ACT B 16 of 1987 be adjourned generally.

Orders that the time for compliance by the applicant with the requirements of bankruptcy notice No. ACT B 16 of 1987 be extended until further order conditionally upon the appeal to the Supreme Court of the Australian Capital Territory in matter No. SCA 1 of 1987 being prosecuted with all due diligence.

Orders that any party have liberty to restore the application filed herein on behalf of Simon Maddox on 10 April 1987 to the list for hearing on a day which will permit the giving of seven days' notice to the other parties.

Orders that the costs of all parties be reserved.

Note: Settlement and entry of orders is dealt with in rule 124 of the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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