Re Versi, P. v Ex parte Buttrose, J.C

[1993] FCA 1020

1020 ,93

JUDGMENT NO. ........ ........ .. . .a . . . . . . .

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	) No. NN835 of 1993
BANKRUPTCY DJSTRICT OF	)
THE STATE OF NEW SOUTH WALES	1

E	PETER VERSI
&!!R	CATHERWE VERSI
Debtors

EXPARTE: JULIAN CHARLES BUlTROSE

Creditor

CORAM:	Beazley J
PLACE;	Sydney  -1 FEE 1994
I2ME	28 September 1993

AUSTRALIA	PRINCIPAL
REQISTRY

QNS FOR EX TEMPORE JUDGMENT

This is an applicaton by the debtors, Peter Versi and Catherine Versi for an order

Buttrose the judgment creditor, in an amount of $12,134.54, comprising an amount of

setting aside a Bankruptcy Notice No. NN835 of 1993 issued by this court on 29
March 1993, or alternatively for an order that the time for compliance with the

Bankruptcy Notice be extended. The parties have requested that I deal with the

submissions made in respect of the first order sought in the first instance, that is the

challenge to the validity of the Bankruptcy Notice.

The Bankruptcy Notice alleges an indebtedness by the debtors to Juiian Charles

$11,811.04 plus interest thereon of $323.50 up until 9 February 1993. It is said that

that amount is due by the debtors under a final judgment obtained by Julian Charles

Buttrose against the debtors in the Supreme Court of New South Wales on 10

December 1990 and a Certificate of Taxation obtained by him against the debtors on

12 November 1992, being a judgment and a Certificate of Taxation the execution of

which has not been stayed.

In the application for issue of the Bankruptcy Notice, Julian Charles Buttrose stated

that he produced a copy of what he said was a final judgment against the judgment debtors obtained in the Supreme Court of New South Wales on 10 December 1990

together with a Certificate of Taxation obtained by him on 12 November 1992. The

judgment lodged with the Application indicates that it was a judgment of the Supreme

Court of New South Wales, Sydney Registly, Equity Division, in proceedings No. 3568

of 1990, entitled 'Yulian Clzarles Buttrose arzd Heatlzer Winifred Bunrose, plaintiffs;

Peter Versi and Katherine Versi Defendarzts". That judgment provided that the

Defendants pay to the Plaintiffs the sum of $127,247.21, with a note that the judgment

takes effect on 10 December 1990, together with other orders including an order that

the Defendants pay the Plaintiffs' costs.

The judgment was entered on 14 December 1990. It appears that thereafter costs in the matter were taxed and allowed in the sum of $11,811.04. The amended bill of costs for taxation which was filed with the court is also entitled "In The Supreme Court

of New Soutlz Wales, Equity Diviswrl No. 3568 of 1990 between Juliait C/aarles Buffrose
and Heatlzer Winvred Bumose Plairztiffs aid Peter Versi arzd Katherirze Versi
Defendarzts'!

On 26 October 1992 the taxing officer gave a notification pursuant to Pt52

r50B(l)(b)(ii) of the Supreme Court Rules. That notification only bears the names of

Julian Charles Buttrose and Peter Versi, although it is entitled "First Plauztiff and l

Ors and First Defenda~tt	arrd 1 Ors'! Subsequently, on 13 November 1992, a
Certificate of Taxation issued.	The reference in the Application for Issue of

Bankruptcy Notice to the Certificate of Taxation dated 12 November 1992 is

p~esumably a typographical error. The Certificate of Taxation bore the

Supreme Court number and the names of the first Plaintiff and the first Defendant,

although it too had the notation "1st Plauitiff arrd 1 Ors and 1st Defendant and 1 Ors".

On the schedule of parties which was attached to the Certificate of Taxation the

names of both Plaintiffs and of both Defendants appeared.

The debtors submit that the Bankruptcy Notlce is invalid because it was issued by one

only of the joint creditors. Counsel for the debtors referred to Australian Workers'
Union v Bowell (1946) 72 CLR 575. In that case a Bankruptcy Notice was issued in
the name of all creditors but without the authority of all creditors. In dealing with

that matter all Justices of the High Court held that a Bankruptcy Petition must be

presented by all joint judgment creditors in order to be valid.

Chief Justice Latham said at 583:

"01tly one writ of executiort cart be ksued for the one judgmertt debt to which joint
judgmertt credirors are entitled, and a banhptcy notice in the case of such
creditors can be effective only whet1 ksued by or on behalf of all the judgment
creditors. So also a bankruptcy petition must be presented by all the joint
judgment creditors: Expaae Owen; 111 re Owerz (1884) 13 QBD 113; Brickland v
Newsome (1808) 170 ER 1026 crnd see Re ncker; Ex parte Tucker (1895) 73 LT

170".

The Chlef Justice expressly disapproved the decision in Re Derby (1904) 22 WN
(NSW) 87 where it had been held that one of a number of joint judgment creditors
was entitled to obtaln the Issue of a Bankruptcy Notice in the name of all the
creditors. See also Duon J in Australian Workers' Union v Bowen at 590, Williams J

at 591 and at 593, where his Honour said that "...there is rzo rule wtziclz autlzo~es ome

of tlze jouzt creditors of a judgmerzt debt to issue a barthptcy irotice."

I am bound by that decision and accordingly I declare that the Bankruptcy Notice

NN835 of 1993 is invalid and should be set aside. I order that the judgment creditor

pay the judgment debtors' costs of the application.

I certify that thls and the preceding 3 pages are a true copy of the Reasons for

Judgment herein of her Honour Justlce Beazley.

Associate: 1-	4-
Date:	21 January 1994

Solicitor for the Applicant:  Mr J P Capsanis

Counsel for the Respondents:  Mr F P Carnovale

Solicitors tor the Respondents:	Hooton & Perkins
Date of hearing:	28 September 1993