Stokes, R.l. v National Acceptance Corporation Pty Ltd
[1990] FCA 775
•11 DECEMBER 1990
Re: ROBERT LESLIE STOKES
Ex Parte: NATIONAL ACCEPTANCE CORPORATION PTY LIMITED
No. N P2530 of 1990
FED No. 775
COURT
IN THE FEDERAL COURT OF AUSTRALIA
BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Einfeld J.(1)
HEARING
SYDNEY
#DATE 11:12:1990
JUDGE1
The matter before the court is the validity of a bankruptcy notice issued by the National Acceptance Corporation Pty Limited as judgment creditor in a judgment obtained against the debtor in the Local Court at 94 Pacific Highway, North Sydney on 21 February 1990.
The certificate of judgment of the court, dated 15 June 1990, says that the judgment creditor recovered its judgment and states that interest is payable at a rate of 15 per cent. The certificate of judgment does not make provision for the payment of the judgment to anyone although I am informed that the Local Courts' (Civil Claims) Rules makes provision for the payment to be made to the registrar of the court. Section 41 (2)(a)(i) of the Bankruptcy Act provides that the bankruptcy notice must require the debtor to pay the judgment debt "in accordance with the judgment". This bankruptcy notice requires the debtor "to pay the sum involved to the judgment creditor". It has been held that a notice requiring payment to the judgment creditor is bad: see Ex Parte Bolan 26 WN(NSW) 78 and Re Martin 18 FLR 372. It has even been held that requiring payment of the debt to the judgment creditor or the registrar of the court is bad: see Re Mellick 19 FLR 1.
I agree with counsel for the creditor that the debtor has not appeared to take this point and that it seems unlikely that the debtor was in any way likely to have been misled by the bankruptcy notice. However, it seems appropriate that I should construe the certificate of judgment in the Local Court as requiring that the debt be paid to the registrar of that court. In that event the bankruptcy notice is clearly in conflict with the provision to which I have referred requiring it to be in the form of the judgment on which it is based.
Apparently, I therefore have no option but to reject the bankruptcy notice and declare it invalid.
I dismiss the petition.
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