Re Sheidow, B.D. v Ex Parte Laboratories Credit Union Ltd

[1990] FCA 750

750 / 9 0

NOT SUITABLE FOR DISTRIBUTION JUDGMENT NO. . ........ . ...-. ,, l.

3RAL COURT OF AUSTRALIA )

RE:  BRUCE DEWAR SHEIDOW

Debtor

EX PARTE:  LABORATORIES CREDIT UNION LIMITED

Petitioning Creditor

CORAM: Burchett J.

PLACE: Sydney

DATE : 4 December 1990	RECEIVED
24 DEC 199fl

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

This is a creditor's petition by Laboratories Credit Union Limited on the ground of non-compliance with a bankruptcy notice. The Debtor, Mr Sheidow, has previously challenged the bankruptcy notice, and also the authority under which the petition was presented. Mr Justice Einfeld rejected the challenge to the bankruptcy notice, and Mr Justice Gummow held the petition was duly authorized.

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On the hearing of the petition, the debtor sought an adjournment until the hearing of an appeal, or application for	t
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leave to appeal - it was not made quite clear which was	i s ,

contemplated - against the decision of Mr Justice Gummow. I I _.

refu~ed an adjournmen;, taking the view that no reason I

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appeared why the matter ought not to proceed without further , .

delay. Mr Bizannes, for the creditor, then proved a prima facie case of failure to comply with the terms of the bankruptcy notice, as extended by a series of orders up to the dismissal of the application to set it aside. I should note that one of the affidavits filed in this matter on behalf of the creditor failed to take account of the extensions, with the result that it contained some false assertions. Affidavits are very serious, they are sworn evidence, and I trust more care will be taken by the deponent, and in the solicitor's office, to ensure this does not happen in the

future .

There also seemed to be adopted a remarkably loose attitude towards the precise sums paid by the debtor, which appeared to be omitted altogether from some sworn statements of the amount owed, and to be acknowledged in others only in vague terms without precise quantification. Courts strive to avoid pedantic technicalities, but sworn evidence of the amount of a debt should be accurate, and it would be very unfortunate if any other view became common. Of course, in

many cases in bankruptcy, lack of precision may lead to the	dismissal of a petition. In the present case, however, I am
satisfied, as apparently were Mr Justice Einfeld and Mr Justice Davies on prlor occasions, that any error in the bankruptcy notice was a relatively insignificant overstatement of the amount due. Such an overstatement is covered by S. 41(5)- of the Bankru~tcv Act 1966, since there is no suggestion
any notice under that subsection was ever given. So far as
the situation since the issue of the bankruptcy notice is concerned, I am well satisfied that the amount alleged in the petition was and remains owing, or, at the least, that amount less not more than about $200.

M r Sheidow argued that, apart from a number of payments

of $1 and $1.50 each which he had sent by cheque or bank transfer, the petitioning creditor should have given credit for five shares he had originally held in it which had been, as he said, forfeited or transferred out of his name. There is, however, no evidence that the proper amount in respect of the shares was not, in fact, taken into account at the proper time, and is not reflected in the final balance claimed as

due. The face value of the shares was apparently only $10.

Mr Sheidow then claimed the petitioning creditor was

estopped by virtue of its acceptance of the accumulation of

tiny amounts he remitted to it through the bank. He referred

me to Re Bucklev and Bienefelt: Ex parte James Hardie & CO Pty

Ltd (1976) 13 ALR 291, but that was a case involving the

tender of the full amount of the debt claimed.	It is quite
irrelevant to the present case.

Even more irrelevant were two other cases cited by Mr Sheidow: Alexander Broaden v. The Directors, &C., of the Metro~olitan Railwav Company [l8771 2 AC 666; and Waltons Stores [Interstate) Limlted v. Maher (1988) 164 CLR 387.

A further matter raised was the alleged contravention by Miss Smedley and the petitioning creditor of the Commercial Aaents Act of New South Wales in relation to the registration of an agent. It was suggested this somehow invalidated the bankruptcy notice on the basis that the debtor could not safely pay an unregistered agent. But the bankruptcy notice, which was in a perfectly usual form, required payment to the Registrar of the District Court. There is nothing in this point.

Finally, Mr Sheidow made it clear he still wished to rely on his challenge to the authority to present the petition. As to this, I respectfully adopt the reasons given by Mr Justice Gummow.

To the extent that irregularities have occurred in this matter as I have indicated, I am satisfied no substantial injustice has been caused thereby: see S. 306 and see Kleinwort Benson Australia Limited v. Crow1 (1988) 79 ALR 161.

All the matters raised in opposition having failed, I am satisfied that the debtor has committed the act of bankruptcy alleged in the petition; and I am satisfied with the proof of the other matters of which S. 52(1) of the Act requires proof. I note that Richard Campbell Brien, a registered trustee, has consented to act as the trustee of the estate of the debtor. I make a sequestration order against the estate of the debtor. I order that costs, including reserved costs, be taxed and

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paid according to the Act. And I direct that a draft of this 1 :

order be delivered to the registrar within seven days in	. ,
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accordance with rule 124(2).	1. 1
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I certify that this and the preceding four (4) pages	: 1
are a true copy of the Reasons for Judgment herein
of his Honour M r Justice Burchett.	, ,
Dated: 4 December 1990