Re Terrence Butler; Ex Parte William Manly Condon

[1992] FCA 347

JUDGMENT No. ........ .. 34'3 q2 ,.., J , . , .

IN THE FEDERAL COURT OF AUSTRALIA	)	No. QN 1270 of 1991
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF	1
THE STATE OF QUEENSLAND	1

RE :	TERRENCE BUTLER
EX PARTE:	WILLIAM MANLY CONDON

MINUTES OF ORDER

JUDGE MAKING ORDER:	Drummond J
DATE OF ORDER:	25 May, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        The bankruptcy notice numbered 1270' of 1991 be set

aside. -

2.  

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IN THE FEDERAL COURT OF AUSTRALIA	1	No. QN 1270 of 1991
GENERAL-D-IVISION	1
BANKRUPTCY DISTRICT OF	1
THE STATE OF OUEENSLAND	1

RE:  TERRENCE BUTLER

EX PARTE: WILLIAM MANLY CONDON

CORAM: Drummond J

PLACE: Brisbane

m: 25 May, 1992

EX TEMPORE REASONS FOR JUDGMENT.

In this case the only question I have to determine
is whether a bankruptcy notice in the form in which it has
been given is effective for the purposes of the Bankru~tcv Act

1966  fCth1 ("the Act").

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The notice shows that the judgment creditor is an American corporation resident in Florida and that the/ judgment	debt is a debt obtained in the Queensland Supreme Court. The
notice is drawn in the exact form prescribed by the Act and the Bankruptcy Rules. It requires the judgment debtor to pay the amount of the judgment debt. It gives no indication, however, where this payment is to be made, a matter of substance given that the address of the judgment creditor shown in the bankruptcy notice is its Florida address.
It is true, and again there has been compliance with the Bankruptcy legislation, that the notice shows an address for service as the Benowa solicitors for the judgment creditor, but rule 4(1) makes it clear, if there could be any doubt, that the expression "address for service" is merely the address at which legal process can be effectively served on the judgment creditor. There is no indication in the notice itself as to where in Australia the judgment debtor can pay the amount of the debt demanded by the judgment creditor.
On the authority of Re Martin: Ex parte Government Employees Finance And Industrial Loan Corporation (1969) 13 F.L.R. 353, it is clear that where a foreign creditor has obtained a judgment which obliges the debtor to pay the foreign creditor in Australia, the notice should require payment to the creditor and should give as the address of the creditor a place in Australia at which there is in fact a person duly authorised to receive payment.

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The form needs to be amended to cover this special

situation where the judgment creditor is an ex-Australian
entity.

It has been suggested that the omission to include in the bankruptcy notice a statement of the place within the jurisdiction at which the demand made by the notice can be satisfied is a mere irregularity curable by amendment. In reliance upon the decision in Re Haritos: Ex Parte Hill (1969)

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15 F.L.R. 378 at 379, it seems to me, as is really apparent

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from the procedure which utilises bankruptcy notices, that an	I .
omission from a notice to identify a place within the	i
jurisdiction at which a judgment debt owing to an ex-	t
Australian person can be satisfied is a fundamental defect in
.	the notice and is not a mere irregularity curable by
amendment. l -
I certify that this and the preceding two pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Drummond.