Somes v Duke Group Ltd

[2000] FCA 248

FEDERAL COURT OF AUSTRALIA

Somes v Duke Group Ltd [2000] FCA 248

Bankruptcy - whether bankruptcy notice overstated the amount due in accordance with the judgment - whether moneys recovered from third parties should be credited against the judgment debt - notice having been given under s 41(5) of the Bankruptcy Act, whether overstatement of the amount due invalidates the notice - whether notice saved by s 306(1) - whether payment from third parties appropriated by the judgment creditor to another debt.

Bankruptcy Act 1966 (Cth)
Supreme Court Act 1935 (SA)
Bankruptcy Legislation Amendment Act 1996 (Cth)
Acts Interpretation Act 1901 (Cth)

Duke Group Limited (In Liquidation) v Pilmer & Others (1999) 73 SASR 64 referred to
Byron v Southern Star Group Pty Ltd (1977) 73 FCR 264 cited
Royal Brunei Airlines SDN. BHD v Tan [1995] 2 AC 378 discussed
Sanders v Snell (1998) 157 ALR 491 cited
Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (1995) 130 ALR 469 cited
Edwards v Hood-Barrs [1905] 1 Ch 20 cited
Midland Montagu Australia Limited v Harkness (1994) 124 ALR 407 cited
Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159 cited
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Limited (1995) 132 ALR 514 cited
Wah Tat Bank Ltd v Chan Cheng Kum [1975] AC 507 cited
Hamilton v Warne (1907) 4 CLR 1293 applied
In re Child, Ex parte Child [1892] 2 QB 77 cited
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 considered
Walsh v The Deputy Commissioner of Taxation (1984) 156 CLR 337 referred to
Hilti (Australia) Pty Ltd v Millard (1997) 78 FCR 453 applied
Re Walsh; Ex parte Deputy Commissioner of Taxation(NSW) (1982) 42 ALR 727 applied

Matter No. S7202 of 1999

KEVIN CLARENCE SOMES v THE DUKE GROUP LIMITED

VON DOUSSA J
ADELAIDE
13 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7202 OF 1999

BETWEEN:	KEVIN CLARENCE SOMES APPLICANT
AND:	THE DUKE GROUP LIMITED (IN LIQUIDATION) ACN 007 554 690 RESPONDENT
JUDGE:	VON DOUSSA J
DATE OF ORDER:	13 MARCH 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The bankruptcy notice issued against the applicant on 8 October 1999 be set aside.

2.The respondent pay the applicant’s costs of and incidental to the application to this Court.

Note:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7202 OF 1999

BETWEEN:	KEVIN CLARENCE SOMES APPLICANT
AND:	THE DUKE GROUP LIMITED (IN LIQUIDATION) ACN 007 554 690 RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	13 MARCH 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application brought pursuant to s 41 of the Bankruptcy Act 1966 (Cth) (the Act) to set aside a bankruptcy notice issued on 8 October 1999, and served on the applicant on 12 October 1999. In the alternative the application seeks that the time for compliance with…