Re Manzo, R.B. v Ex parte Imperial Leatherware Co Pty Ltd

[1991] FCA 219

JUDGMENT No. 2!.9. /. . L ..... ! %

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
)
BANKRUPTCY DISTRICT OF THE STATE OF)	NP 2797 of 1990

)

NEW SOUTH WALES GENERAt DIVISION )

RE :  ROBERT BRUCE MANZO

Debtor

EX PARTE:  IMPERIAL LEATHERWARE CO PTY LIMITED

Creditor

CORAM: Burchett J.
PLACE: Sydney

DATE : 16 April 1991

EX TEMPORE REASONS FOR JUDGMENT FEDERAL COURT OF

PRINCIPAL

BURCHETT J.:

In this matter Mr Parsons has urged succinctly but strongly all of the points that could properly be taken in support of the petitioning creditor's case, but the difficulty is that the case does seem to fall very squarely within the principle of a decision which has previously been given. The decision, which it seems to me is governing in this case, is the decision of Mr Justice Gummow in Re Soudakoff: Ex Darte Crest Air Conditionina Ptv Limited (unreported, 13 March

Bankru~tcv Act, 1966 which requires the prescribed form of	judgment. Mr Justice Gummow drew attention to S. 41(2) of the
bankruptcy notice, among other things, to require the debtor to pay the judwent debt or sum ordered to be paid "in accordance with the judgment or order". He drew attention to the long history of those words, which were reproduced, though not exactly, in the 1966 Act from an earlier form already the subject of authoritative decision. Although the reproduction of the form of words was not exact, it has repeatedly been regarded as being to the same effect, and the change has not been thought to reflect any intention to vary the law.
The problem is that there has been a change in a requirement of the legislation setting up the Local Courts (which, at one stage, required payment of a judgment to the Registrar of the Local Court, but subsequently, in the case at any rate of lump sum judgments, ceased to make the requirement of payment to the Registrar). Mr Justice Gummow held that the bankruptcy notice was invalidated, where it continued to require a payment which was not in accordance with the true effect of the judgment. His decision is consistent with two
decisions, which were cited to me by counsel, of M r Justice Sweeney - Re Martin (1971) 18 FLR 372 and Re Mellick (1971) 19
FLR 1.

1991).

That case concerned an alleged failure to comply with the
requirements of a bankruptcy notice founded upon a Local Court

In Re Martin at page 374, Mr Justice Sweeney said:

"In the light of the authorities reviewed in
Mellick I am of the opinion: (1) that the debtor
could have been misled by the bankruptcy notice and
it is accordingly invalid; (2) that the defect
cannot be regarded as merely formal under S. 306,
sub-S. (1) or proper to be cured by amendment under

S. 33, sub-S. (l)(a); (3) that the petition should

be dismissed."

~t seems to me that that reasoning is equally applicable in the present case. M r Parsons, however, urged upon me a

decision of Mr Justice Gibbs in Re Hamor: Ex Darte Deamer

(1968) 11 FLR 261. He said that that case showed that a notice, which did not require payment in accordance with the judgment, might nevertheless be valid despite what was said in the other cases. However, Re Hamor was a very special case. It involved two judgment creditors, and a bankruptcy notice the terms of which called upon the debtor to make payment in ways which included a way that would permit payment to be made to one only of the judgment creditors. Gibbs J. (at page 264) said:

"Although the notice in form did not require the debtor to pay the debt in accordance with that judgment, it did so in substance because he would satisfy the judgment if he complied with the terms of the notice as to payment. The defect in the notice therefore seems to me to be purely formal and, since it is clear that no injustice was caused by the giving of the notice in this form, the notice is saved by S. 7 of the Bankruvtcv Act."

In my view that decision is plainly distinguishable, since what his Honour there said could not be said if payment were made strictly in accordance with the terms of the present bankruptcy notice. Such a payment would not have been, in itself and by virtue only of the payment being made, a satisfaction of the judgment.

For these reasons I think it is my duty to follow the decision in Re Soudakoff, and accordingly I dismiss the petition. Costs, including reserved costs, nust be paid by the petitioning creditor.

I certify that this and the preceding three (3)

pages are a true copy of the Reasons for Judgment

herein of his Honour M r Justice Burchett. A

J Associate

Dated: 16 April 1991