Re McLean, H.M. v Ex parte McLean

[1994] FCA 521

JUDGMENT No. .Y........ ......r S21 L

RE:

Debtor

EX PARTE:  -

Applicant

BIZTOLE W M E N T S PTY LTD

JRECEIVER AND M A G E R APPOINTED1

Respondent

mYf!x:	NORTHROP J
EL&%:	MELBOURNE
R&l!E:	4 JULY 1994

PEASONS FOR JUDGMENT

This application brought by Helen Muriel

a most unfortunate history which may have arisen from a
multitude of errors, but those errors are capable, on one
view, of giving rise to very serious consequences. The

bankruptcy notice has stamped on it a stamp indicating it was

application is in matter No VN 3191 of 1993. The VN number
indicates it is a matter arising in the Bankruptcy District of
the State of Victoria in a matter which arose in 1993 in
relation to a bankruptcy notice and was given the number 3191
for identification purposes. The bankruptcy notice was

actually issued by a Registrar in Bankruptcy of the Bankruptcy

District of the State of Victoria.	I use the word Registrar
as including a Deputy Registrar in Bankruptcy.	It was issued

on 18 January 1994, but the application for the issue of the

filed on 20 December 1993. The application for the bankruptcy

notice is dated 16 December 1993. It appears from the file

that the bankruptcy notice was served on Helen Murid McLean,

the judgment debtor named in the bankruptcy notice, on 23

. . April 1994. . The bankruptcy. notice was a 14. day. notice.

Accordingly the time limit within which to pay the amount of the debt mentioned in it would have expired on 7 May 1994. On the day before, namely 6 May 1994, the judgment debtor filed an application under paragraph 41(6B)(b) of the Bankruptcy Act 1966 which provides:

"Where, before the expiration of the time fixed by the
Registrar for compliance with the requirements of a

bankruptcy notice:

(a) ...

(b) an application to set aside the bankruptcy notice has been filed with the Registrar

the Registrar may, subject to subsection (6C), extend the

time for compliance with the bankruptcy notice."

The application filed on 6 May 1994 sought to have the bankruptcy notice set aside on a number of grounds. Pursuant	to that application, a Deputy Registrar in Bankruptcy made an
order on 9 May 1994 extending the time for compliance with the bankruptcy notice up to and including 31 May 1994 or until
further order. That order was made on the basis that the
bankruptcy notice had been served not earlier than 22 April
1994. It should be noted that the affidavit of service had not been filed by 9 May. The bankruptcy notice had been
served on 23 April, thus no problem arises in relation to this issue.

On 31 May 1994 the time for compliance with the

bankruptcy notice was further extended to 22 June 1994 and
thereafter was extended until midnight tonight. It follows

that the time for compliance with the bankruptcy notice has

.. not yet expired and therefore that no act of bankruptcy has

been committed.

Subsequently, a proposed amended application was served. This morning when the matter was called on for hearing, a further proposed amended application was handed to the Court, setting out the grounds upon which it was sought to set aside

the bankruptcy notice. In addition, pursuant to directions

given by a Registrar in Bankruptcy, a number of affidavits had been filed in support and in opposition to the application and the grounds relied upon to have the bankruptcy notice set

aside .

When the matter was opened, it was indicated by counsel for the judgment debtor that the grounds set out in paragraphs

l(c), (d) and (e) of the further proposed amended application

were ones sought to be relied upon. They are as follows:

"(c) The judgment upon which the Bankruptcy Notice is

based is irregular and is liable to be set aside in

that	c
(i)	the money claim upon which the judgment is based is not supported by any or any sufficient allegation against the debtor;
(ii)	further or alternatively, the extent that the creditor sought and obtained relief both by way of a declaration of trust in favour of the creditor and an order for the transfer of property described and known as 34 Berkeley Street, Hawthorn, to the creditor, the relief to which the creditor was entitled was exhausted.

(d)	The judgment upon which the Bankruptcy Notice is based is irregular and is liable to be set aside in that it was purportedly entered in a proceeding which had been struck out and had not been reinstated.
(e)	The Judgment Debtor has a counterclaim, set-off or cross-demand against the Judgment Creditor in excess of the amount claimed in the Bankruptcy Notice and which is the subject of proceeding No 2261 of 1992 in the Commercial List of the Supreme Court by which the sum of $1,762,192.56 together with damages, interest and costs is claimed by the Judgment Debtor against the Judgment Creditor."

The grounds relied upon disclose a rather strange history of legal proceedings in the Supreme Court of Victoria. They raise nice questions as to whether the judgment in the Supreme Court was properly made or whether it contained such inconsistencies within it that it vitiated the whole of the judgment. The Court has not had occasion to look into these matters. It expresses no opinion about them, except to say that, on the face of it, the relevant judgment appears to

double the remedies which the judgment creditor sought to recover.

During the course of opening, the Court drew attention to

what appeared to be some defects in the bankruptcy notice and
in the material before the Registrar at the time that the
bankruptcy notice was issued. Before turning to these
matters, reference should be made to some of the provisions of
the Bankruptcyllct itself. Section 40 contains provisions
relating to acts of bankruptcy, and paragraph 40(l)(g)
provides for an act of bankruptcy based upon a judgment debt.
The relevant parts of that paragraph are:

40(1) . A debtor commits an act of bankmptcy.in each

of the following cases:

(a)	. . .
(g)	if a creditor who has obtained against the debtor a

final judgment or final order, being a judgment or

order the execution of which has not been stayed,
has served on the debtor in Australia, or by leave
of the Court, elsewhere, a bankruptcy notice under
this Act and the debtor does not:

(i) where the notice was served in Australia -

within the time fixed by the Registrar by whom

the notice was issued; or

(ii) ...

comply with the requirements of the notice ... "

It is not necessary to refer to the rest of the

paragraph.

Section 41 of the Act contains provisions relating to

bankruptcy notices. Subsection 41(1) provides:

"41 (1) A bankruptcy notice:
(a) shall be in accordance with the prescribed form; and

(b) shall be issued by the Registrar."

It is noted that in the Bankruptcy Act a Registrar is

appointed for each bankruptcy district. In addition there are

Deputy Registrars for each district. Each has the same po*pars, see subsection 1 4 ( 2 ) of the Bankruptcy Act:

"Each Registrar and Deputy Registrar has such powers and
functions as are conferred or imposed on a Registrar by

this Act. "

Subsection 41(2) prescribes the form of a bankruptcy

notice. -Subsection 41(3) includes the following paragraphs:

"41(3) A bankruptcy notice shall not be issued in

relation to a debtor:

(a)	except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(l)(g)
or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;
(b)	if, at the time of the application for its issue, execution of the judgment or order to which it relates has been stayed; or
(C)	. . . "

I have already referred to subsection 41(6B) which

applies in this case.

Rule 7 of the Bankruptcy Rules provides for the filing of applications for bankruptcy notices. Sub-rules 7(1) and (2)

provide as follows:

issue of a bankruptcy notice by filing an application, in	"7(1) Application may be made to the Registrar for the
accordance with Form 3, with the Registrar.
(2) At the time when the application is filed, the applicant shall:
(a) file one of the following documents in respect of the final judgment or final order in relation to which a bankruptcy notice is to be issued:

(i) an office, sealed or certified copy of the judgment or order;

(ii)  a certificate of the judgment or order under the seal of the court or under the hand of an officer of the court;

(iii) ... "

I do not need to refer to the other paragraphs of sub-

rule (2) nor to sub-rules (3) and (4). Sub-rules (5) and (6)

provide :

" ( 5 ) Where the Registrar is satisfied that application

has been duly made to him for the issue of a bankruptcy
notice and that the copies of the form of bankruptcy
notice furnished to him in accordance with paragraph 2(b)
are in order for signature, the Registrar shall sign and
stamp each of those copies and return them to the

applicant.

(6) Where the Registrar issues a bankruptcy notice, the

applicant shall file a copy of the notice."

The application for a bankruptcy notice must be filed.

Further, where a bankruptcy notice is issued, a copy must be

filed.	The word "filed" is defined in Bankruptcy Rule 4(1) as
follows :

'"Filed", in relation to a document, means filed with the

Registrar in Bankruptcy for the appropriate District and

"filem and "filing" have corresponding meanings.'

It is in the framework of these provisions, both in the

Act and in the Bankruptcy Rules, that I turn to what happened in this case. The file comprising the bankruptcy notice in matter No VN 3191 of 1993 commences with an application for

the issue of a bankruptcy notice dated 16 December 1993. The

application was made by Blake Dawson Waldron as solicitors for
the judgment creditor. It names Biztole Developments Pty Ltd
(Receiver and Manager appointed) (ACN 006 394 627) as creditor

and Helen Muriel McLean as debtor. It states that the

creditor requests the Registrar to issue a bankruptcy notice

addreseed to Helen Muriel McLean.	It states that the
creditor:

" ... produces an office copy of a final Judgment against

the Judgment Debtor obtained by it in the Supreme Court
of Victoria at Melbourne on the 25th day of November
1993, and of the order dated 6 December 1993 lifting a

stay of execution on that final Judgment."

The application continues:

"3. Execution of the final Judgment has not been stayed

at the time of making this application."

The application was filed on 20 December 1993, even

though it is dated 16 December 1993, which I understand was a

Thursday, 20 December 1993 being a Monday. The fee of $300

was paid on 20 December 1993. These facts appear from the

stamp of the Registrar placed on the application. There is
also on the file a letter from Blake Dawson Waldron which
refers to the fact that they are seeking two bankruptcy
notices, one against Helen McLean and another one against
Stephen McLean, wife and husband. The letter refers to the
fact that there is a certain urgency about the matter and they
want the judgment debtors served by 20 December 1993. The
letter continues:

"That is so that the period in respect of the Bankruptcy
Notice can begin to run prior to Christmas/New Year

break. "

Other matters are mentioned, which I need not refer to.

The next document is a copy of a judgment in the Supreme Court of Victoria. It is said to be authenticated on 29

November 1993, but, as I understand it, "authenticated" means
"entered". There is the stamp of the Supreme Court and the
signature of a Deputy Prothonotary given on 29 December 1993.
The judgment states that the plaintiff is Biztole Corporation
Pty Ltd (Receiver and Manager appointed)(In liquidation)(ACN
050 139 083). It is noted that that company and number are
different from the name of the company and number referred to
in the application for the issue of the bankruptcy notice.
The defendants are Stephen Prank McLean and others according
to schedule attached. The schedule attached shows that the
first defendant is Stephen Frank McLean and the second

defendant is Helen Muriel McLean. There are other named

defendants.

The schedule indicates that the plaintiff is Biztole

Developments Pty Ltd, ACN 006 394 627, but the heading itself
gives a different name to the plaintiff and makes no reference
to the plaintiff named in the schedule. The judgment appears
to have been a consent judgment on the trial of the proceeding
where parties were represented by counsel. The Court made a
number of orders including orders that Mr and Mrs McLean held
their respective interests in the property referred to in the
statement of claim, which is a house at 34 Berkeley Street
Hawthorn, on trust for the plaintiff. They also agreed to
withdraw their application to register a mortgage over the
property and to transfer the property to the plaintiff. There
is also an order that the first defendant,-Stephen McLean, pay
certain sums of money to the plaintiff, and the second
defendant, Helen McLean, pay in total the sum of $805,716.05
to the plaintiff plus the plaintiff's costs.

There are also orders that:

" 6 .	Execution and operation in respect of the above orders and declaration be staved until 5.00 Dm on 1	-	-
March 1994.

7.    Liberty to apply is reserved to the Plaintiff and the fifthnamed Defendant, the Registrar of Titles."

That order was made in Supreme Court proceeding number

2149 of 1992.

There is also then on the file No VN 3191 of 1993 a

judgment of the Supreme Court of Victoria in matter No 6347 of

1992, a different number to the earlier judgment, in which
Biztole Corporation Pty Ltd (Receiver and Manager
appointed)(In Liquidation)(ACN 050 139 083) is named as
plaintiff and Stephen Frank McLean is named as defendant, an
order made on 6 December 1993 which states that the order was
made ex parte, which varied the order made on 25 November 1993
by deleting paragraph 3 thereof, and which ordered that the
defendant pay the plaintiff's costs of this application and
that the order be signed by a Judge. There is no reference in
that judgment at all to Helen McLean.

There is also on file VN 3191 of 1993 another order of 25

November 1993 of the Supreme Court of Victoria in matter No
6347 of 1992 in which judgment was entered by consent against
Stephen Frank McLean in favour of Biztole Corporation Pty Ltd
(Receiver and Manager Appointed)(In Liquidation)(ACN 050 139

083) for certain orders. These orders appear to be the orders

which were varied by the order I have just referred to.

The file then contains the stamped bankruptcy notice. It

states the judgment creditor as being Biztole Developments Pty
Ltd (which is not the plaintiff appearing in the order of 25
November 1993 being the first order appearing in the file) and

that the judgment creditor:

" ... has claimed that the sum of $805,716.05 and no more

is due by you to it under a final judgment obtained by it against you in the Supreme Court of Victoria at Melbourne

on the 25th day of November 1993 being a judgment the

execution of which is not now stayed."

The bankruptcy notice then goes on to require payment of that sum within 14 days. It appears to comply with the

requirements of the prescribed form of a bankruptcy notice.

This is the bankruptcy notice which was in fact served on the

judgment debtor on 23 April 1994. It is noted that the amount

mentioned is the amount of the judgment of 25 November in No

2149 of 1992. It refers to the fact that execution of that

judgment was not then stayed. When looking at the judgment,
it was stayed until 1 March 1994, a date after the date of the
issue of the bankruptcy notice. There is no reference to any
other order made in the Supreme Court affecting the judgment
debtor Helen Muriel McLean or to the stay of the operation of

the judgment of 25 November 1993. I will come back later to

discuss whether this is a defect in the bankruptcy notice
itself, whether it is a material defect or a fonnal defect,

and if it is a formal defect whether it is protected by 8306

of the Bankruptcy Act. On the face of it, even though it was

argued that it refers to the right amount of the judgment debt and the date of the judgment debt, it is completely misleading to say that the execution of the judgment "is not now stayed"

when anybody looking at that judgment would see that it had
been stayed and was stayed at the time when the bankruptcy

notice was issued.

The initial confusion arose because at about the same

time there was an application for a bankruptcy notice against

Stephen McLean.	This is made clear from the letter which is
on the file in Helen McLeanvs matter No 3191 of 1993. As far

as Stephen McLean is concerned, the application for the
bankruptcy notice was sought by Messra Blake Dawson Waldron
pursuant to a notice dated 16 December 1993 in which Stephen
Frank McLean is said to be the debtor and Biztole Corporation
Pty Ltd (Receiver and Manager appointed)(In Liquidation)(ACN
050 139 083) is said to be the creditor. This application is
in Bankruptcy District of the State of Victoria File No VN
3177 of 1993. The application states that Biztole Corporation
Pty Ltd is the judgment creditor and seeks the issue of a
bankruptcy notice addressed to Stephen Frank McLean. The
application is supported by a copy of a final judgment against
the judgment debtor obtained by the creditor in the Supreme
Court of Victoria at Melbourne on 25 day of November 1993, and
a copy of a second judgment made on 6 December 1993 lifting a
stay of the execution judgment. The application stated that
execution of the final judgment has not been stayed at the
time of making the application.

This application for the issue of the bankruptcy has

stamped on it a stamp by the Registrar in Bankruptcy stating
it was filed on 17 December 1993, that is, on the Friday
before the stamp on the application for the bankruptcy notice
in relation to Helen McLean.

Copies of the orders of the Supreme Court are on the file. These are in Supreme Court matter No 6347 of 1992, ordering Stephen Frank McLean to pay to the plaintiff the sum

of $320,484 plus interest in the sum of $68,265.73 and staying

the execution of the order until 1 March 1994. There is then

an order in the aame matter made on 6 December 1993, the order
stating, in substance, that the earlier order of 25 November
be varied by deletion of paragraph 3, that is the stay
operation, and ordering payment of the plaintiff's costs by

the defendant.

The file then contains an order in the other Supreme

Court action, No 2149 of 1992, between Biztole Developments Pty Limited aa plaintiff and Stephen Frank McLean and others as defendants, but there is no schedule to that order. It makes orders to the effect that the order authenticated on 29 November 1993 be amended so that the title of the plaintiff should read Biztole Developments Pty Ltd (Receiver and Manager appointed)(ACN 006 394 627) and that that order be varied by deleting paragraph 6 thereof, that paragraph being the stay order.

This bankruptcy notice which was issued on 17 December

1993. It is directed to Stephen Frank McLean, requiring payment of the sum of $388,749.73 and no more, as due by Stephen McLean to the creditor under a final judgment obtained

by it against Stephen McLean in the Supreme Court of Victoria
at Melbourne on the 25th day of November 1993, being a
judgment the execution of which was not then stayed. It is
noted that that is in the same form as in the notice to Helen
McLean and may well be subject to a defect, although at least
here there is the order enclosed on the file showing that the

stay was removed.

The bankruptcy notice was served on the debtor, Stephen

McLean, on 20 December 1993. In fact, the bankruptcy notice there was issued much earlier than the bankruptcy notice in relation to Helen McLean, which was not issued until 18 January 1994. A nice question has been raised before the Court as to whether, in these circumstances, the fact that there is no reference to the second order made affecting Helen MeLean on the file relating to her notice of bankruptcy is sufficient of itself to make the bankruptcy notice defective.

It is difficult to know what in fact happened in this

case. There are two separate applications for the issue of a

bankruptcy notice. The filing dates are different. It is not
clear whether the error occurred in the Registry itself or by
those presenting the documents to the Registry for filing.
The definition of the word "file" does not appear in the Act
itself, but in relation to presentation of a petition, a Full
Court of this Court has considered the matter in the case of

Purden ..- Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512.

There, at page 515, the Court considered the word "filed"

and said:

"Counsel for the respondent argued that a petition is not
presented until it is filed.

"Filed" is a not a word to be found in the Act in relation to a petition, whether a creditor's or a debtor's petition. The Act uses the word "presented".

"Filed" is a word which appears in the Bankruptcy Rules
and understandably so. Those Rules are concerned with
what happens within the bankruptcy registries and the
duties of parties lodging documents there. "Filingw is a

word traditionally used to describe the act or process of

Where the presentation and filing of a petition are	placing documents in the records of courts or registries.	synchronous or where two acts take place on the same day, no problem arises."
But filing is more than merely presentation. It does

require some act on the part of the Registrar. At the very
least, it requires the Registrar to give a number to an
initiating document to commence the file and then placing that
document on the file so commenced.

In the present case, there are different files. There is no doubt about that. The files have different numbers and the applications are stated to have been filed on different days.

In those circumstances, it is difficult to see how the Registrar could have made the error in relation to putting wrong documents on different files. It is equally open to conclude that the documents were presented to the Registrar in a form which constituted the error at that stage.

It is doubtful whether the Registrar is required to

determine that the bankruptcy notice is in conformity with the
copy judgment filed in support of the application for the
bankruptcy notice. It is sufficient, under Rule 7, if the
bankruptcy notice appears to be in a proper form. This
enables the debtor, in appropriate cases, to challenge the
correctness of the bankruptcy notice later. But at the very
least, the Registrar should ascertain whether the order relied
on, see Rule 7 ( 2 ) , supports the application against the debtor

and whether the order is stayed or not, see subsection 41(3)

of the Bankruptcy Act.	On the face of the material in file No
3191 of 1993, I am satisfied that, on the material presented

to the Registrar, a bankruptcy notice should not have been

issued against Helen Muriel McLean.

The major reason for this decision is that the only

judgment referred to in the file was a judgment of 25 November
1993, a judgment that was said to be stayed until 1 March

1994.   There was no reference to any other judgment varying

that stay. On the face of the judgment itself, the amount of the judgment was not then owing. In fact, it had been stayed and therefore execution of the judgment was stayed and could

not have come within the requirements of a valid bankruptcy

notice. Further, there appears to be confusion as to the name

of the judgment creditor.

It is argued that the Registrar should have been aware of

the fact that there were the two applications for bankruptcy
notices and that he should have been aware that there was, in
one of them, a copy of a judgment against Helen McLean which
stated that the stay had been lifted. But, in my opinion,
that is not appropriate. What is important is that the
Registrar who issues a bankruptcy notice is the one who must
act on the material in that file. In this case, the two
bankruptcy notices were issued by different Deputy Registrars.

The question then arises whether this defect in the

bankruptcy notice is a formal defect which, under a306 of the

Bankruptcy Act, can be disregarded. Subsection(1) of that

section reads: 

"306(1) Proceedings under this Act are not invalidated

by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the

defect or irregularity and that the injustice cannot be

remedied by an order of that court."

The High Court in Kleinwort Benson Australia Limited v

Crow1 (1988) 165 CLR 71 Mason CJ Wilson, Brennan and Gaudron
JJ said at p81:

'Section 306(1) operates automatically unless "the court
... is of opinion that substantial injustice has been

caused by the defect or irregularity and that the
injustice cannot be remedied by an order of that court".'

Counsel for the judgment debtor has argued that the irregularity is not a formal defect but is a substantive defect and that, in any effect, if it is a formal defect, the

creditor should not be entitled to the benefit of the
provision in s306. Counsel for the judgment creditor has
argued that, at the very worst, this is a formal defect and no

injustice has been caused and that therefore the bankruptcy

notice itself is valid. In my opinion this is more than a

formal defect and I will deal with that shortly.

The statement in the bankruptcy notice makes reference to

one judgment only, the amount specified in the notice
corresponding with that in the judgment. The date of the

judgment is said to be the 25th day of November 1993. It was

in fact made on that day and authenticated on 29 November 1993

80 it is the correct date. But it is stated in the bankruptcy

notice that execution of the judgment is not now stayed. Any
debtor receiving such a notice, in looking at that judgment,
would see that the judgment was stayed until 1 March 1994. It
is not necessary that a debtor be in fact misled by a
bankruptcy notice. The principles are discussed in Re

Wfnbourne; Ex pdrte The Debtor (1979) 24 ALR 494 by Lockhart J

at pp498-499.	It is sufficient if a debtor would reasonably
be mislead.	In my opinion, on the present facts, a debtor

would reasonably be mislead.

There had been a series of orders made from time to time

arising in complex litigation in the Supreme Court. There was
the order made on 25 November 1993 but there had been a stay
of execution of the payment of the amount to be paid under
that order. There is no reference at all in the bankruptcy
notice to the effect that a subsequent order had varied that

stay order. Of necessity, in my opinion, this would have a

misleading effect on a debtor receiving a notice of this kind

as to whether in truth the execution of the order had been

stayed or not. This is so particularly when the second order

removing the stay had been made ex parte in the absence of the debtor. The solution was not to be achieved by looking at the

judgment itself in the Supreme Court.	It would not have
helped the matter one way or the other.

For these reasons, in my opinion, this is not a case where a306 of the Bankruptcy Act should apply even if the defect were a formal defect. This is a case where the Court

is of opinion that substantial injustice has been caused by

the defect or irregularity and that the injustice cannot be	remedied by an order of the Court. This is because this Court
can make no orders as to what should be done in relation to a
bankruptcy notice, which, on its face, has a defect in it. It
is very different from the facts of Wimbourne where the bankruptcy notice made reference to the judgment of the High Court. That was the Court which in fact made the order even though the form of the order was that the order of the Supreme
Court in New South Wales be varied. In that case, his Honour
held that that was not a substantive error, it was a formal

2 0

defect, if a defect at all, which could come within the
benefit of ss306(1).

But, more importantly, in my opinion, the defect in the

present case is substantive because it is completely
misleading as to the effect of any stay of execution of the

judgment debt. This is a defect which is more than formal, it

is substantive. It does not comply with the express
requirements of 840 and ss41(3) of the Bankruptcy Act and of

Rule 7 of the Bankruptcy Rules.

In those circumstances, in my opinion, the bankruptcy

notice is bad and should be set aside. In coming to this conclusion, as I said at the beginning of my reasons, the Court has not considered the other grounds relied upon to

challenge the validity of the bankruptcy notice. In the

result, the Court orders that the bankruptcy notice directed
to the judgment debtor, Helen Muriel McLean, and issued on 18

January 1991 be set aside.

The judgment debtor has sought an order for the costs of

the application including reserved costs. The judgment
creditor has opposed that order on the grounds that the defect
was one that was raised by the Court and is not one which was
made the subject of the application for setting aside the
bankruptcy notice, and that the issues raised in relation to
the grounds stated have not yet been argued and in fact need
not be argued because the preliminary issue has decided the
matter against the judgment creditor.

2 1

In cases of this kind, difficulties always arise as to

whether the costs should follow the event, whether there
should be some apportionment or whether each party should pay
its own costs.

In my opinion, on the facts of this case, the defects in

the bankruptcy notice itself are such that it justifies the
making of an order that the judgment creditor pay the judgment
debtor's costs of the application including any reserved
costs, those costs to be taxed.

I certify that this and the preceding twenty (20) pages are a
true copy of the Reasons for Judgment of The Honourable Mr

Justice R.M. Northrop.

Associate: &@)fm Date: a w 1 9 9 y

Counsel for Applicant:	Mr R.C. Macaw QC with
Mr P.J. Ginnane
Solicitors for Applicant:	Kingdon Lawyers
Counsel for Respondent:	Mr R.L. Berglund
Solicitors for Respondent:	Blake Dawson Waldron
Date of Hearing and
Judgment :	4 July 1994
Signed :
Dated: d	199q

JUDGES' CHAMBERS
FEDERAL COURT OF AUSTRALIA
450 LITTLE BOURKE STREET

MELBOURNE, 3000

3 August 1994

MS Sonia Cornale
Records Clerk
Library and Information Services
Principal Registry
Federal Court of Australia
Level 16
Law Courts Building

Queens Square

SYDNEY NSW 2000

Dear Sonia

Re:  m u t e r i z e d Leaal Information Retrieval Svstem

I enclose the following judgment for inclusion in the data base of Federal Court Judgments:

Jielen Muriel McLean Ex Parte: Helen Muriel MeLean v u t o l e Develo~ments Ptv Ltd (Receiver and Manaaer

The word processing disk containing the above judgment is enclosed. Please return the disk to me when appropriate.

Thank you

ecretary to

Hon Mr Justice Northrop