Richardson, Re K.J. & Anor Gleeson, Ex Parte G.

[1986] FCA 602

NOT FOR DISTRIBUTION

BANKRUFTCY DISTRICT OF THE ZTATE OF VICTORIA

Re : KENNETH JOHN RICWDSON and

RAELZNE CHERYL RIWARDSON

Judgmer,t Debtors

Ex parte: G-dALD GLEESON, LdRNA GLEESON

and DARYL GLEESOPJ

Judgment Cre61tors

-: NORTHROF S .

DATE: 30 OCTOBER i33C

F a : MELBOURNE

EX TEMFORE REASOBS FOE JUDGMENT

Thla is the return for the hearlng of a petition ln

which the judgment creditors. Gerald Gleeson, Lorna Gleeson

and Daryl Gleeson, are aeeklng a sequeatratlon order agalnat

the ~udgment debtors, Kenneth John Richardson and Raelene

Cheryl Richardson. The petltlon 1 s founded upon a

non-compliance 31th a bankruptcy notlce. Notlce of

upposltlon to thc petlclon has been i;lven on behalf of the

~udgment dsbtors and the ground statsd 1 s as follows:,- -

,/'

?

- 2 -

The bankruptcy notlce ln the present case is dated

3 June 1996 and is based upon a ~udgment sf the Supreme Court

of the State of Vlctoria which was made on 25 March 1986 in

whlch the judgxent credltors were named as plalntlffs and the

~udgment debtors were named as defendant;. The order xa5

that the ~udgment debtors pay tc the ludgment creditors an

.

amount of $ 2 8 5 , 0 0 0 and as f a r as I k n m , there has Seen no

stay of that ~uaqment, although part of the money was not due to be pald before 14 Aprll 1386. The ban!crupr;cg notrce was lssued aftrr thac date. 14 Aprli, and in the bankruptcy

notlce the ludqment debtors at-e named as the debtors and the

credltors as the Judgment credltors afid is dlrected to the

t?o debtors and requlres them to pay the sum of $285,000

whlch is due to the ]udqmrnt crrdltors under a flnal 2udgment

obtalned against the debtors In ths Supreme Court at

Melbourne on 25 March 1386 being a ludgment the execution of

which has not been Etayed.

n

- 3 -

"41(1) A bankruptcy notlce -

(a) shall be In accordance vith the

prescrlljed form;".

Referznce should he made alzo to zub-;ecclm 41( 2 1 x'r~xh

contalns prnvislon 3s to xhat must bz in the prescrlbed form

and I read part a? that sub-sectlan:-

"41(2) The prescrib2.d form sf bankruptcy notice

shall be such chat the notlce -

(a) requlres che debtor" tnote the alngular) "named in It, wlthin 3 speclfied time"

and I can lgnore the tlme p r o v l a l o n s . In sub-paragraph

"(li) secure the payment of the debt or

sum to the aatlsfaction of the

Court or the credltor or his

agent . . . . "

Reference to Form 4 of the Bankruptcy Rules, xhich 1 5 the

relevant Form by reason of rule 8 ai the Rules, provides:-

'' 8 For the purposes of paragraph 4 [ 1) (a] of the

Act, a bankruptcy notlce	shall be m accordance
with Form 4.:

- 4 -

"To: inam?, a d l r e s s and cmccupatlon of ludqment

debtor)

WZP.E35 \name and address of ludgment creditor)

(hereinafter referred to as 'the judqment creditor')"

and then the Form is all directed tc the debtor In the

s lngular .

Counsel for the debtors has highllghted these

provlsions and contrasted them wlth sub-section 46(1) xhich is a sectlon deallng wlth the Court prxedures in relatlon to petitions and whick provldes that:-

"&(l) A credltor's petltlon may be presented

against 2 or more Joint debtors, wnecher partners

or not. ' '

He argued that on Its proper construction, sub-sectlons 41(1)

and ( i ) , rule a and Form 6 all requlre the word "debtor" to

be construed in the singular and not to lnclude the plural, "debtors". He relies upon a number of reasons, for Instance, relying upon a rule of constructlon that express provlslon as to one type of matter does not lnclude other matters and hence the reference here to debtor does not include debtors. He relies upon the fact that In bankruptcy proceedings there

1 s a requirement for strlct compllance with the Act and the

Rules. He argued further that there 1s a contrary intentlon

- 5 -

wlthm the meanlnq of 5 . 2 3 of the Acts Interpretatlon Act

1901. That sectlon, In substance, provldes that unless a

contrary lntentlon appears In any Commonwealth Act, t h e

singular lncludes the plural. If that zectlon doer; appl:I, l n

5.41 of the Eankruvtcv Act, the use .3f the xord "debcor '

would include the plural as In the Furm 4 also unless a

contrary lntentlon applied. He rell?d lupm sub-sectlon &(l)

as lndicatincr a zontrary lntantion, jut ~n mv oplnion, thaz

secclon cannot be used In any way a~ ;l1 fzr that purpose.

It 1 s deallng w l c n zomethlng d1lferer.c altzqether.

In my oplnlon, s.23 of the Acts Interpretatlon Act

does apply and there is no contrary lntentlon whatsoever as far as 5.41 is concerned and as far a; Form 4 is concerned. Sectlon 41 makes reference in sub-sectlon ( 2 ) to the word

"debtor" only and to the word "creditor" only; does not use

the plural of either of those words and there is nothlng in

that section CO suggest that there 1 5 a contrary intention.

Sectlon 2 3 of the Acts Interpretatlon Act dues apply so that

In 5.41 the word "debtor" Includes the plural, "debtors", and

the word "credltor" includes the plural, "creditors".

If necessar:~, support for. that 'U'IEW can be had by a reference to the requirement that a creditor can obtaln a

bankruptcy notlce; Form 4 uses the gords "1udgment credltor". and it 1s In my view lnconceivable that the use of the words

"judgment creditor" in that Form 1s to be construed as

meaning a single creditor only and not two or more creditors.

In fact, there would be difficulties m law where there are

~olnt credltors lf sofie credltor on::; =ere to issue a bankruptcy notice o+c-ause che payoent 3:j che debtor :a rhr

other jolnc cretZ:-tsr xould be a f u l l dlscharqe	but a
non-compllance with che bankruptcy r.ctlce Itself.

In support of hls contentlons, counsel f o r the

~udgment debtors pointed out what he described as anomalies

that would arise lf two debtors could be named In the

bankruptcy notiTe. namellr, that one dehcor may pay the amount

of the debt, but the other debtor would stlll be in breach of

I.

the notice. On one view that mighr be correct, but the same

reSUlt would arlse lf two bankruptcy notlces had been issued

“,I.

d against each of the ludgment; debtors. fine of whom had paid

and the other o.?e had not. T h e r e would stlll be a

non-compllance wltli the second bankiupccy notice. The

solucion there 1s that the debt ha-;lng been pald, noth1n.q

further could be done about	it as far as the	ludgment
creditors were concerned.

For those reasons, the submlssions made on behalf

of the judgment debtors are rejected and It is held that the

bankruptcy notlce does comply with the Act and the Rules and

accordingly, the Court should proceed to deal 31th the other

matters raised by t h e notice of opposltion.