Stergis v Boucher

[1989] FCA 120

Re: DONALD ANDREW BUNN
Ex parte: MARJORIE DALZIEL BUNN
No. P2021 of 1988
FED No. 120
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY
Neaves J.(1)

CATCHWORDS

Bankruptcy - bankruptcy notice - Notice requiring payment of judgment debt to petitioning creditor's solicitors - Requirement not "in accordance with the judgment or order" - Validity.

Bankruptcy - Creditor's petition - Debt due under order of Family Court of Australia - Order charging debt on real property and providing for sale of real property upon default in payment - Whether petitioning creditor a secured creditor - Whether petitioning creditor able to surrender security to the trustee in bankruptcy for benefit of creditors generally in event of sequestration.

Bankruptcy Act 1966 (Cth), ss.5(1), 40(1)(g), 41, 44

Family Law Act 1975 (Cth), ss.79, 79A, 80

HEARING

CANBERRA

#DATE 7:4:1989

Counsel for the petitioner :Mr D.B. McGovern

Solicitors for the petitioner:Macphillamy Cummins & Gibson

Counsel for the debtor :Mr B. Meagher

Solicitors for the debtor :Boardman Allport Bell & Finlayson

ORDER

The petition be dismissed.

There be no order as to costs.

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

JUDGE1

Marjorie Dalziel Bunn ("the petitioner") has petitioned the Court for the sequestration under the Bankruptcy Act 1966 (Cth) ("the Bankruptcy Act") of the estate of her husband, Donald Andrew Bunn ("the debtor"). The petition is opposed by the debtor on a number of grounds.

1. The petition, which was presented on 6 September 1988, alleges that the debtor is indebted to the petitioner in the sum of $276,450.20. That sum is said to comprise the amount of $212,654.00 ordered to be paid by the debtor to the petitioner by the Family Court of Australia on 4 December 1986, together with interest on that amount at the rate of 15 per centum per annum from 30 August 1986 to 30 August 1988 amounting to $63,796.20. The petition is founded on an act of bankruptcy consisting in the failure of the debtor on or before 8 April 1988 either to comply with the requirements of a bankruptcy notice served on him on 18 March 1988 or to satisfy the Court that he had a counter-claim, set-off or cross demand equal to or exceeding the amount claimed in the bankruptcy notice, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment was obtained. (It may be noted, however, that the word "not" has been inadvertently omitted from the statement of the act of bankruptcy in the petition.) The petition further states that the petitioner holds security over part of the property of the debtor for payment of the debt, being a charge created by an order of the Family Court of Australia, but that she is willing to surrender the security for the benefit of the creditors generally in the event of…