Scott, G. v Preston, A

[1994] FCA 568

S6& 9%

JUDGMENT NO. .A

COURT OF AU~TRALIA

1

UPTCY DISTRICT	OF TtIE	1	NN 4561 of 1993
1

OF N W	SOUTH WALES	1
Re:  GLEN SCOTT (Debtor)

ANDREW PRESTON

(Respondent)

Corarn:	Whitlam J
Place:	Sydney
Date:	21 July 1994

PEASONS FOR JUDGMENT

(Ex Tempore)

This is an application by the debtor to set aslde a bankruptcy notlce or, in the

South Wales on 2 April 1993. The tlme for compliance specified in the notice, as	amended by order of the Registrar, was 14 days after 23 March 1994 excluding that date.
alternative, to extend the tlme tor compliance with the bankruptcy notlce unt~l	the
disposal of an appeal pendlng in the Supreme Court of New South Wales.

The bankruptcy notice was ~ssued on 13 December 1993 at the request of Andrew

Preston, who had obtalned judgment agalnst the debtor m the Dlstrlct Court of New

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. .*....I,. " L . . . . . . . . . . . l . . .

This application was filed on 23 March 1994 and time tor compliance with the bankruptcy notice has since been extended until today.

The judgment in the Dlstrlct Court was glven m an action between Mr Preston as
plaintiff and the debtor as defendant for money lent. The defence of the debtor in that

action denied the loan. The pleadings and the reasons for judgment of the trial judge (Garling DCJ) ar in evidence before me, together witl. i notice of appeal filed on behalf

of the debtor in the Supreme Court on 29 Apnl 1993. The appeal books were served

on Mr Preston's solicitor on 18 November 1993.

whlch the debtor relies to have the bankruptcy notice set
dress of the judgment cred~tor at which payment can be

e recltes Mr Preston's address as 28 Burwood Road,

en Mr Preston's residential address, which even now he 1s

S his place of work until 3 June 1994. Evidently it IS a building

three floors of which are occupied by approximately 100 to 150 staff of the Water Board. Mr Preston dld not work tor the Water Board at all. He worked for two other

organisations, lndustrlal Manpower and Tojo, who evidently provrded contract services to the Board.

The requlrement that an address of a credltor be stated in a bankruptcy notice

was dealt w~th in the Full Court of th~s Court in Nueent v Briallum Ptv Ltd (1985) 61

ALR 725 in a judgment of Lockhart J, wlth whom Northrop J and Beaumont J agreed.

His Honour sets out (at 726-728) the history of such a requlrement and the purpose tor i t His Honour said (at 727):

"As [perceive it, the ratiortale of these and other decisions is that the address of the creditor must be stated in onier to comply with the prescribed form of notice atad because noncompliance with the requirements of a bankruptcy notice constitutes an act of bankruptcy and may have quasi-penal consequences.

It is not sufficient that a creditor merely give an address where he is l m w n It must be an address at which he can be paid or where an agreement may be made with him or on his behalf to secure or compound it. If the creditor gives his home as his address he :: not bound to remain there all day and night during the currency of the norice. Obviously that would be absurd. Similarly, if he gives his business address he is not bound to remain there always, or even throughout the whole of normal business hours (whatever that expresssiorr may mean these days) during the currency of the notice.

However, I agree wrth the primary judge that, where the creditor is a company, it is desimble that there be someone present at the address given in the notice during ordinary business hours with authority to receive payment immediately and without having to get in touch with the Board or any other person capable of conferring authority. I would add that it is desirable, though not essetztial, that such a person ako have authority to secure or compound the debt i f that is the wish of the creditor and he does not merely ituist, as he may i f he wkhes, upon payment of the debt in full.

In my opinion, the address stated must be one at which the debtor, may during the currency of the notice, make payment of the amount claimed in the notice, or one where he may m a k arrangements to secure or compound the debt. It may be that Lz certain circumstances, although he may make arrangements to secure or compoutld by calling

at the address stated in the notice, he will do so by speaking to persons	who are themselves not physically at that address, but are, for example,
available on the telephone. The examples of the possibiliries are manifold and need no elaboration."

The rationale of such a requirement has also been considered by Heerey J more recently in Re Punliese: Ex oarte The Chase Manhattan Bank of Australia Ltd (1993) 44 FCR 536. In an ex tempore judgment his Honour set out (at 538) how the requirement was sahsfied in that case.

In both of those cases the address given in respect of the judgment creditors was an address care of sohcitors. In m, the address was also descr~bed as the registered office of the two companies who were the relevant judgment creditors, and the trial judge (Pincus J) was satisfied in the circumstances that was sufficient. In Pueliesg the address

given was that of the solicitors acting for the judgment creditor. Heerey J said (at 538):

''In my opinion, the bankruptcy notice did comply with the Act. The term "address" means, amongsr other things, "a place where a person lives or may be reached (Macquarie Dictionary). m e purpose of a bankmptcy notice k to convey to the debtor the amount which the judgment crediror claims and to give the debtor the oppomily of paying or securing that amount. For that purpose the judgment debtor must be rold what the amount IS and where the creditor can be reached to accept payment or security. m e requirement of providing the address of the creditor was satkfid in this case by giving the address of the creditor's soliciton, shce that was a place where payment of the debt wr~uld be accepted, even though it was not a phce where the creditor cam'ed on business."

In the present case Mr Zamm~tt has naturally enough drawn to my attention the

statement of the name and address of the judgment creditor's solicitors as "its agent" [sic]

in paragraph (B) of the notlce as an address in respect of which payment could be secured. Nonetheless, since there is the other address glven at the commencement of the	bankruptcy notice where the judgment cred~tor	1s identlfied, the situat~on	for a debtor
remains confused.

Lockhart J made clear in Nueent that a business address would in many respects be entirely appropriate as the address of judgment cred~tor for the purposes of a bankruptcy notice. Of course, if it were a buslness address, his Honour emphasised that

a person was not bound to remaln there always or even throughout the whole of normal

business hours during the currency of the notice. But here 52 Burwood Road was not

a "business address" of Mr Preston in that sense.

On the state of the evidence before me I am firmly of the view that the address

given in the bankruptcy notice in respect of Mr Preston was not one at which it was

reasonably practicable to make a payment. True it is, that there was an address of his solicitors at which one could secure or compound. But if it be a requirement, as I accept that it is, that the address given in respect of the judgment creditor also be one where payment can be made, then the bankruptcy notice is defective in that respect. On that

basis alone it seems to me that the bankruptcy notice must be set aside. Accordingly I

propose to allow the application and set as~de	the bankruptcy notice. Mr Preston must
pay the debtor's costs.

I cert~fy that thls and the preced~ng four pages are a

true copy of the Reasons for Judgment herein of the
Honourable Mr Justice A.P. Whltlam.

Assoc~atc ;:

Date. 1 August 1994

Counsel for debtor:  J T Johnson

~nstructed by Sally Nash & Co

Counsel for respondent	M.S. Zamm~tt
instructed by	Glsela Ramensky & CO