Re Zikesch, Richard Ex parte A.M.M Pty Ltd - [1984] FCA 338

Re: Richard Zikesch
Ex Parte: A.M.M. Pty. Ltd.
No. P.407 of 1984
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA
Jenkinson J.

CATCHWORDS

Bankruptcy - sufficiency of bankruptcy notice - claim for further interest abandoned in recital of bankruptcy notice - whether uncertainty is induced. Bankruptcy - service of petition - official copy of petition - document served appearing to be a machine copy of petition - whether document served was an official copy of the petition.

Bankruptcy Act, 1966 - ss. 41, 306

Bankruptcy Rules - r.4.

Re The Bankruptcy Act 1966; Ex parte Commercial Banking Company of Sydney Limited (1979) 23 A.L.R. 522

In re H.B. (1904) 1 K.B. 94

Re McDonald (1978) 18 A.L.R. 505

Re Schierholter (1978) 19 A.L.R. 113

Re Munson (1977) 29 F.L.R. 479

McKenzie v. Rees (1941) 65 C.L.R. 1

HEARING

MELBOURNE

#DATE 22:10:1984

ORDER

The Court orders that the grounds of apposition to the petition specified in paragraphs 1 and 1A of the amended notice of the grounds on which the debtor intends to oppose the petition be and are hereby overruled.
The Court further orders that the costs of the hearing of the petition to and including this day be reserved.

JUDGE1

Determination of issues raised on the hearing of a bankruptcy petition.

The first question is as to the sufficiency of the bankruptcy notice upon which the alleged act of bankruptcy is grounded.
The material parts of the bankruptcy notice are:

"Whereas (the judgment creditor) has claimed that the sum of $11,643.75 is due by you to it being a total of -

(i) The sum of $11,169.43 due by you to it under a final judgment obtained by it against you in the District Court of New South Wales at Albury on the thirteenth day of September 1983, being a judgment the execution of which has not been stayed, and

(ii) the sum of $474.32 being interest on the said sum of $11,169.43 at the rate of 15.5 percentum per annum computed from the 13th day of September, 1983 to the 22nd day of December, 1983, due by you to it pursuant to the terms of the said judgment, any claim for further interest being abandoned for the purpose of compliance with this Bankruptcy Notice.

THEREFORE TAKE NOTICE that within 21 days after service of this notice on you excluding the day on which this notice is served on you, you are required -

(a) to pay the sum of $11,643.75 so claimed by the judgment creditor to the Registrar of the District Court at Albury; or

(b) to secure the payment of the sum referred to in the last preceding paragraph to the satisfaction of the Federal Court of Australia or the Judgment Creditor or compound the sum so specified to the satisfaction of the Judgment Creditor."

It was submitted by Mr. Braun of counsel for the debtor that a person reading the requirement which is stated in the…

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.

Continue reading Re Zikesch, Richard Ex parte A.M.M Pty Ltd

Details

AGLC: Re Zikesch, Richard Ex parte A.M.M Pty Ltd [1984] FCA 338
Case: [1984] FCA 338
Decision Date: 22 OCTOBER 1984

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Re Zikesch, Richard Ex parte A.M.M Pty Ltd dealt with issues surrounding the sufficiency of a bankruptcy notice and the service of a bankruptcy petition. The petitioner, A.M.M Pty Ltd, sought to declare the debtor, Richard Zikesch, bankrupt. The central legal issues that the Court needed to resolve were whether the bankruptcy notice was sufficient and if the bankruptcy petition was properly served on the debtor.

The Court examined the sufficiency of the bankruptcy notice by focusing on the abandonment of the claim for further interest in the recital of the notice. The Court held that the abandonment did not introduce any uncertainty into the notice, and therefore, the notice was sufficient. Regarding the service of the petition, the Court determined that the document served on the debtor, which appeared to be a machine copy of the petition, constituted an official copy. The Court concluded that the service of the petition was valid, despite the form of the document served.

The Court ruled in favor of the petitioner, A.M.M Pty Ltd, overruling the grounds of opposition specified in paragraphs 1 and 1A of the amended notice of the grounds on which the debtor intended to oppose the petition. The Court also reserved the costs of the hearing of the petition to and including the date of the judgment.

Orders

Orders of the court

The Court orders that the grounds of apposition to the petition specified in paragraphs 1 and 1A of the amended notice of the grounds on which the debtor intends to oppose the petition be and are hereby overruled.

The Court further orders that the costs of the hearing of the petition to and including this day be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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