Re Stephen Richard Luckins Ex Parte Columbia Pictures Industries Inc - [1996] FCA 567

CATCHWORDS

BANKRUPTCY - Bankruptcy notices - notice failing to specify place for payment within Australia - whether duty upon debtor to make payment beyond territorial limits of the Commonwealth - foreign creditor to give as its address a place within Australia where agent will receive payment - no agent within Australia nominated - evidence that Australian resident could pay debt owing to American corporation - expense and uncertainty involved in the use of international banking facilities - bankruptcy notice invalid

Bankruptcy Act 1966, ss.41(1), 41(2)(a)

Re Martin; Ex parte Government Employees Finance and Industrial Loan Corporation (1969) 13 FLR 353 applied
In re A Debtor [1912] 1 KB 53 considered
Re A Debtor [1911] 2 KB 718 considered
James v Federal Commissioner of taxation (1955) 93 CLR 631 distinguished
Re Buchanan; Ex parte Mervac Finance Limited (1991) 31 FCR 135 considered
Re Haritos; Ex parte Hill (1968) 15 FLR 378 considered

BANKRUPTCY - Bankruptcy notices - final judgment or final order - power of Registrar to "draw up, sign and seal" orders under O.62, r.45 of the Federal Court Rules - whether such process merely "a part of the record of proceedings" which lack finality - Registrar's order a "speaking" order - reference to extrinsic material unnecessary - order a "final" order

Federal Court Rules, O.62, r.45(3)

Wilmot v Buckley (1984) 2 FCR 540 distinguished
Re Cartwright; Ex parte Cartwright v Barker [1975] 1 WLR 573 distinguished

STEPHEN RICHARD LUCKINS; EX PARTE COLUMBIA PICTURES INDUSTRIES INC. and TRISTAR PICTURES INC.

No. NP 138 of 1996

BEAUMONT J.

12 JULY 1996

SYDNEY

IN THE FEDERAL COURT OF BANKRUPTCY )
  )
BANKRUPTCY DISTRICT OF THE         ) No. NP 138 of 1996
  )
STATE OF NEW SOUTH WALES              )

RE:STEPHEN RICHARD LUCKINS

Debtor

EX PARTE:COLUMBIA PICTURES INDUSTRIES INC AND
TRISTAR PICTURES INC

Creditors

CORAM:    Beaumont J.
PLACE:    Sydney
DATE:     12 July 1996

MINUTES OF ORDER

THE COURT ORDERS:

Declare that the subject bankruptcy notice is invalid.

Petition dismissed.

Order that the petitioning creditors pay two-thirds of the debtor's costs of the proceedings.

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

IN THE FEDERAL COURT OF BANKRUPTCY )
  )
BANKRUPTCY DISTRICT OF THE         ) No. NP 138 of 1996
  )
STATE OF NEW SOUTH WALES              )

RE:STEPHEN RICHARD LUCKINS

Debtor

EX PARTE:COLUMBIA PICTURES INDUSTRIES INC AND
TRISTAR PICTURES INC

Creditors

CORAM: Beaumont J.

DATE: 12 July 1996

REASONS FOR JUDGMENT

INTRODUCTION
On the hearing of a creditors' petition for a sequestration order in respect of the estate of the debtor, a question has arisen as to the validity of the bankruptcy notice now relied on by the creditors. Although no formal order has been made to the effect that the issue of the validity of the notice be determined as a separate question, the matter has gone forward on the footing that I should deal with this aspect of the proceedings by making a declaration as…

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

AGLC: Re Stephen Richard Luckins Ex Parte Columbia Pictures Industries Inc [1996] FCA 567
Case: [1996] FCA 567
Decision Date: 12 Jul 1996

CaseChat Overview and Summary

This case involved a challenge to the validity of a bankruptcy notice issued by Columbia Pictures Industries Inc. and Tristar Pictures Inc. against Stephen Richard Luckins. The creditors argued that Luckins owed them $60,965.93 in costs following a judgment against him in a copyright infringement case. The debtor contended that the bankruptcy notice was invalid for two reasons: (1) it failed to specify a place for payment within Australia, and (2) it did not refer to the judgment or order giving rise to the relevant liability. The Court found that the bankruptcy notice was invalid for the first reason. The Court held that the notice was required to specify a place for payment within Australia and that the debtor was not obliged to pay the creditors outside Australia. The Court found the creditors' arguments unconvincing and held that the approach taken in Re Martin should continue to be applied. The Court also held that the second ground of objection to the notice failed because the Registrar's order was a final order for the purposes of the Act. The Court declared the bankruptcy notice invalid and dismissed the petition. The debtor was awarded two-thirds of his costs of the proceedings.

Orders