Re Terrence Butler; Ex Parte William Manly Condon Summary

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)

. .
3 I .

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

I

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.

The case of Re Terrence Butler; Ex Parte William Manly Condon involves a challenge to the validity of a bankruptcy notice served on Terrence Butler by William Manly Condon. The dispute concerns whether the bankruptcy notice, issued in the prescribed form under the Bankruptcy Act 1966, is effective given that the judgment creditor, an American corporation, is resident outside Australia. The matter was heard in the Federal Court of Australia by Drummond J. The central legal issue before the court was whether the bankruptcy notice, despite being in the correct prescribed form, was fundamentally defective because it did not specify where in Australia the judgment debtor could pay the debt to the foreign creditor. The court had to determine if this omission rendered the notice ineffective.

Drummond J examined the form and content of the bankruptcy notice, noting that while it complied with the statutory and rule requirements, it failed to specify an Australian address for payment of the judgment debt. The judge referred to the precedent in Re Martin: Ex parte Government Employees Finance And Industrial Loan Corporation, which held that a bankruptcy notice must indicate a place within Australia where payment can be made to a foreign creditor. Drummond J found that the omission of an Australian payment address was not a mere irregularity but a fundamental defect that rendered the notice ineffective. The court concluded that the notice could not be saved by amendment, as per the decision in Re Haritos: Ex Parte Hill, which held that certain omissions in a bankruptcy notice are fundamental and cannot be rectified post facto.

Consequently, the court ordered that the bankruptcy notice numbered 1270 of 1991 be set aside, effectively nullifying its effect. This decision underscores the necessity for bankruptcy notices to be meticulously drafted to comply with all statutory requirements, especially when dealing with foreign creditors. The orders of the court were that the bankruptcy notice be set aside and that no further action could be taken based on the invalid notice.

Re Terrence Butler; Ex Parte William Manly Condon

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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

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

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

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.