Re: WILLIAM LESLIE WILLIAMS
And: GENERAL CREDITS LIMITED (1983) 68 FLR 202
No. 1039 of 1982
Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF SOUTH AUSTRALIA
Fisher J.(1)
CATCHWORDS
Bankruptcy - bankruptcy notice - validity - stay of execution on judgment - understatement of amount of judgment - description of amount due - cure of defect
Bankruptcy Act 1966 s.41(3((5)(6). s.306(1)
Bankruptcy - Bankruptcy notice - Whether bankruptcy notice was invalid - Compromise between judgment creditor and debtor - Bankruptcy notice understated amount of judgment debt - Compromise between judgment creditor and judgment debtor - Effect of compromise - Whether debtor likely to have been misled by bankruptcy notice - Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(3), 41(5), 41(6), 306.
HEADNOTE
Section 40(1) of the Bankruptcy Act 1966 (Cth), so far as relevant, provides that:
"(1) A debtor commits an act of bankruptcy in each of the
following cases:
. . .(g) if a creditor who has obtained against the debtor a final
judgment or final order, being a judgment or order the execution
of which has not been stayed, has served on the debtor in
Australia . . . a bankruptcy notice under this Act. . .".
Section 41(3) of that Act, so far as relevant, provides:
"(3) A bankruptcy notice shall not be issued in relation to a debtor -
. . .(b) if, at the time of the application for its issue,
execution of the judgment or order to which it relates
has been stayed."
On 21 October 1982, the creditor served the debtor with a bankruptcy notice and on 8 November 1982, the debtor made application to the Federal Court of Australia to set aside the bankruptcy notice on the ground of its invalidity.
The bankruptcy notice claimed, to the extent relevant, that:
"the sum of $10,000 is due by you to the Judgment
Creditor under a final judgment obtained by the Judgment
Creditor against you in the Local Court of Adelaide on
24 January 1980 being a judgment the execution of which
has not been stayed."
However, evidence showed that the certificate of judgment issued by the Local Court on 19 August 1982 stated that the sum of $10,727.96 was due on that date under the judgment.
By his affidavit filed in support of his application to set aside the bankruptcy notice, the debtor deposed that he believed that the amount stated to be owing to the judgment creditor in the bankruptcy notice was an amount less than that for which judgment was signed in the Local Court and that the amount claimed in the Local Court action was the sum of $10,700.96 plus costs.
On 10 February 1983, an affidavit was filed in the court deposing that on 14 May 1982 the creditor was present in the Supreme Court of South Australia when a judgment was entered in a certain action (in which the judgment creditor was plaintiff and the judgment debtor…
Keep reading for free
Create a free CaseChat account to read Re Williams, William Leslie Ex Parte General Credits 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [1983] FCA 35
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address were whether the understatement of the amount of the judgment debt in the bankruptcy notice rendered it invalid, and if the defect could be cured. The court examined whether the understatement was material and whether the debtor had been misled or disadvantaged by the incorrect amount stated. Additionally, the court considered the requirement for the notice to describe the amount due with sufficient particularity.
The court found that the understatement of the amount in the bankruptcy notice was material and rendered the notice invalid. Despite this, the court also found that the defect could be cured, and the debtor could be given an opportunity to rectify the error. The court determined that the creditor had not acted in bad faith, and the defect could be remedied by providing the debtor with accurate information. Consequently, the court ordered that the bankruptcy notice served on the debtor was invalid and directed the creditor to pay the debtor's costs of the proceedings.
Orders
Orders of the court
1. The bankruptcy notice served on the debtor is invalid.
2. The creditor pay to the debtor his costs of these proceedings. Orders accordingly.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.