Re Tame, J.A. v Ex parte State Bank of New South Wales

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IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION 1
BANKRUPTCY DISTRICT OF THE STATE

) P 3135 of 1990
OF NEW SOUTH WAGES AND THE 1
AUSTRALIAN CAPITAL TERRITORY 1

RE: JOHN ALFRED TAME
Debtor

EX PARTE: STATE BANK OF NEW SOUTH WALES
Creditor

CORAM: Burchett J.
PLACE: Sydney
DATE : 14 Hay 1991
EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:
In this matter it is conceded on behalf of the petitioning creditor that a notice was given by the debtor, under S. 41 subsec. 5 of the Bankru~tcv Act, that he disputed the validity of the bankruptcy notice on the ground of a mis- statement therein of the amount-due to the creditor. The mis- statement involved a claim alleged to be excessive to the extent of approximately $70. It is also conceded that there was in fact such a mis-statement to be found in the bankruptcy notice, unless it could be said that a certificate of judgment obtained from the Distrlct Court and flled in the Registry was conclusive.

I have no doubt that such a certificate is not conclusive. It being conceded that in fact the certificate
was in error, I consider that upon the authorltles there is simply no answer possible for the petitioning creditor to the defect in the bankruptcy notice. I have been referred to Walsh v. The Deputv Commissioner of Taxation of the Commonwealth of Australia (1984) 156 CLR 337. That decision is, of course, binding on me, and has been applied in a great many cases including Re Clubb: Ex oarte Clubb v. Westpac
Bankina Corporation (1990) 93 ALR 123 at 125.
Accordingly, I dismiss the petition.
I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his

Honour Kr Justice Burchett. R

Dated: 14 May 1991 I/ Associate

This Judgement, No.285/1991, is to replace the previous Judgement No.28511991 as it is incorrect. We apologise for the inconvenience.

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CaseChat Overview and Summary

The case involves John Alfred Tame, the debtor, and the State Bank of New South Wales, the creditor. The creditor had filed a petition for Tame's bankruptcy, which was contested by Tame on the basis of an alleged misstatement of the amount owed in the bankruptcy notice. The Federal Court of Australia, General Division, was tasked with determining the validity of the bankruptcy notice and the petition. The key legal issue before the court was whether a certificate of judgment obtained from the District Court and filed in the Registry could be considered conclusive in establishing the accuracy of the amount claimed in the bankruptcy notice.

The court held that such a certificate is not conclusive. In reaching this decision, the judge referred to the precedent set in Walsh v The Deputy Commissioner of Taxation of the Commonwealth of Australia (1984) 156 CLR 337, which has been applied in numerous subsequent cases, including Re Clubb: Ex parte Clubb v Westpac Banking Corporation (1990) 93 ALR 123. The judge found that the certificate of judgment was in error and thus the misstatement in the bankruptcy notice could not be overlooked. Consequently, the court dismissed the creditor's petition. The judge certified that the provided reasons for judgment accurately reflected the decision made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Honour Kr Justice Burchett.	R
Dated: 14 May 1991	I/ Associate