Re Walker, A Ex parte Noble Einsiedel Pty Ltd - [1992] FCA 327

JUDGMENT No. .S~L. J 92

IN THE FEDERAL COURT OF AUSTRALIA

EXERCISING FEDERAL JURISDICTION

IN BANKRUPTCY

BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
RE: ANTHONY WALKER
Judgment Debtor

EX PARTE: NOBLE EINSIEDEL PTY LTD
(RECEIVER AND MANAGER APPOINTED1
Judgment Creditor

COURT : NORTHROP J
PLACE : MELBOURNE
a: 16 APRIL 1992

EX TEMPORE REASONS FOR JUDGMENT

This is the return of a petition seeking a sequestration order against the estate of Anthony Walker. The petition is based upon an act of bankruptcy alleged to be the failure to comply with a bankruptcy notice on or before 19 December 1991. The judgment debtor has given notice of intention to oppose the petition, the notice being dated 27 March 1992, and there are six grounds set out. Grounds 1 and 2 were not pursued, but the other four were, and they are as follows:

judgment made 26 July 1991.

"3. That the Bankruptcy Notice is defective and such as to mislead, confuse or confound the Debtor in that:-

a) it claims an amount due under two judgments when in fact there was no judgment against the debtor on 4 October 1991.
b) the Order of the Taxing Master of 4 October
1991 is not a final order but is an order on
taxation of costs ordered to be paid by the

4.    If the Bankruptcy Notice is based on two judgments as on its face it purports to be then it is void.
5.  The Creditor's Petition has not been properly executed by the Judgment Creditor or alternatively no evidence of the authority of Peter Robert Vince to execute the Petition on behalf of the Judgment Creditor has been served on the Debtor.
6.   That the address of the Judgment Creditor stated on the Bankruptcy Notice is incorrect."

I shall deal first with ground 4. It is conceded that a bankruptcy notice can rely upon one judgment only, and that if it purports to be based on a number of judgments it is bad, and will not be sufficient to support a valid bankruptcy notice based upon a failure to comply with it. In the present case the bankruptcy notice is in a rather unusual form. The petitioning creditor is a company under the control of a

receiver and manager. It is addressed to M r Walker and reads:

"WHEREAS NOBLE EINSIEDEL PTY. LTD. (Receiver and Manager Appointed) C/- Ferrier Hodgson & Co. of 20 Mason Street, Dandenong (hereinafter referred to as "the judgment creditor") has claimed that the sum of $12,514.34 (which sum is calculated as set-out hereunder) is due by you to

it under the final judgments obtained by it against you in the Supreme Court of Victoria at Melbourne on the July 26, 1991 and October 4, 1991, being judgments the
execution of which have not been stayed:
THEREFORE TAKE NOTICE that within fourteen days after service of this notice on you, excluding the day on which this notice is served on you, you are required -
(a) to…

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.

Keep reading for free

Create a free CaseChat account to read Re Walker, A Ex parte Noble Einsiedel Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1992] FCA 327
Decision Date: 16 Apr 1992

CaseChat Overview and Summary

This case involves a petition for a sequestration order against the estate of Anthony Walker, brought by Noble Einsiedel Pty Ltd (Receiver and Manager Appointed), represented by Peter Robert Vince. The petition is based on an alleged act of bankruptcy by Walker, specifically his failure to comply with a bankruptcy notice by 19 December 1991. Walker has opposed the petition, raising six grounds of opposition, though he did not pursue the first two. The court must determine the validity of the bankruptcy notice and the sufficiency of the petition.

The primary legal issues the court had to decide involved the validity of the bankruptcy notice and the proper execution of the petition. Walker argued that the bankruptcy notice was defective because it referred to two judgments when only one could be the basis for a valid bankruptcy notice. Additionally, Walker claimed that the petition was improperly executed as it was signed by Peter Robert Vince, who was not the authorised signatory of Noble Einsiedel Pty Ltd. Furthermore, Walker contended that the address of the judgment creditor on the bankruptcy notice was incorrect.

The court first addressed the issue of whether the bankruptcy notice was based on two judgments, which would render it invalid. The court found that while the notice referred to two judgments, it effectively merged into one judgment as the costs were taxed and allowed under the original judgment. Therefore, the court rejected the argument that the notice was invalid due to referencing two judgments. The court also dismissed the argument that the petition was not properly executed, finding that Peter Robert Vince, as the receiver and manager, had the authority to sign the petition on behalf of Noble Einsiedel Pty Ltd. Lastly, the court ruled that the use of "C/-" in the address on the bankruptcy notice did not constitute a non-compliance with the statutory requirements.

The court concluded that the grounds of opposition raised by Walker were invalid, and the petitioning creditor had adequately proven the act of bankruptcy. The court made a sequestration order against Walker's estate and ordered that costs be paid according to the Act. The court also stayed all proceedings under the sequestration order for 21 days, contingent on the meeting of creditors being adjourned or abandoned.

Orders