Steven Kay GIO General Ltd (ACN 002 861 583) ( formerly GIO Australia Holdings Limited )

[1994] FCA 1056

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY )	NP 2770 of 1994
GENERAL DIVISION

RE: STEVEN KAY

Debtor

EX PARTE:

G10 GENERAL LTD /ACN 002 861 5831

(formerly G10 AUSTRALIA HOLDINGS

LIMITED)

Creditor

CORAM: Burchett J.

PLACE: Sydney

DATE : 13 December 1994

REASONS FOR JUDGMENT

BURCHETT J.:

This matter involves an extraordinarily confused story. The creditor's petition has been brought by a creditor described as follows, "G10 General Limited, ACN 002.861.583 (formerly G10 Australia Holdings Limited)". In fact, G10 Australia Holdings Limited is a separate company, with a separate ACN number, and G10 General Limited was never G10 Australia Holdings Limited.

The evidence shows that, pursuant to a statute of the New South Wales Parliament, the Government Insurance Office .(Privatisation) Act 1991, and particularly ss. 20 and 21 of that Act, a ministerial order was made dated either 29th or 30th - the copy I have is not clear - of June 1992. At any rate, whatever the date of the signing of the ministerial-.

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order by the Treasurer of the State of New South Wales pursuant to that Act, it was expressed to take effect on 30 June 1992. The ministerial order involved a somewhat complex process of transfer, but the parties accept that at the end of the process envisaged by it, -and on 30 June 1992, certain assets and rights of the insurance business formerly carried on by the Government Insurance Office became vested in G10 General Limited.

In a proceeding brought in the District Court against the debtor, which was commenced on 31 July 1990 in the name of the Government Insurance Office of New South Wales, at some stage an amended statement of liquidated claim was filed by which the name of the plaintiff seems to have been amended to G10 Australia Holdings Llmited, ACN 054.573.401, after which was inserted in brackets the statement, "formerly The Government Insurance Office of New South Wales". The amended statement of liquidated claim does not appear to indicate its own date, but refers to the orlginal date of the issue of the proceeding, which, as I have said, was 31 July 1990.

At any rate, on 28 July 1992, judgment was entered in the District Court in favour of G10 Australia Holdings Limited. It seems to me that, in these circumstances, the judgment was entered in the name of a company which, on the petitioning creditor's own case, had no title to it. Almost exactly a month before its date, all right to the claim which became crystallised in the judgment had been- transferred to a--

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,

different company, pursuant to the provisions of the statute

to which I have referred.

Thereafter, the petition was instituted on the basis that the petitioning creditor -held a -judgment, which, of course, the petitioning creditor did not hold. In these circumstances, the defect cannot be described as a merely formal defect within the meaning of S. 306 of the Bankru~tcy

m, 1966. On the contrary, it is an absolutely fundamental

defect in the whole proceeding, and the petition must be dismissed. Accordingly, I dismiss the petition, and I order that the petitioning creditor pay the debtor's costs including reserved costs.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 12 January 1995

Solicitor for the Debtor:

Miss S. Nash of Sally

Nash & CO

Counsel for the Creditor:

M r D.R. Stack

Solicitor for Supporting

Creditor:

Mr A. Restuccia

Solicitors for the Creditor:

Hunt & Hunt

Date of hearing:

13 December -1994