Sunderland v G & J Drivas Pty Ltd

FEDERAL COURT OF AUSTRALIA

Sunderland v G & J Drivas Pty Ltd [2000] FCA 1029

BANKRUPTCY – application to set aside bankruptcy notice – applicant alleged that the bankruptcy notice was invalid because it had not been served personally, and was defective as to form – proper service is not an issue which arises in relation to an application to set aside a notice – the over-statement of interest could not reasonably be regarded as misleading in this instance – the typographical error did not constitute a material error - both the over-statement of interest and the typographical error constituted ‘formal defects or irregularities’ pursuant to Bankruptcy Act 1966 (Cth) s306

Bankruptcy Act 1966 (Cth) ss 41(5), 306

Walsh v Deputy Commissioner of Taxation (Cth) (1984) 156 CLR 337 applied
Re George; Ex parte Tricontinental Corporation Limited (1994) 126 ALR 541 cited
Khadpekar v Kowanyama Aboriginal Council [1999] FCA 1748 cited

DONNA ANNE SUNDERLAND v G & J DRIVAS PTY LTD & ANOR

N 7175 OF 2000

HELY J
25 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7175 OF 2000

BETWEEN:

DONNA ANNE SUNDERLAND
APPLICANT

AND:

G & J DRIVAS PTY LTD
FIRST RESPONDENT

TELADO PTY LIMITED
SECOND RESPONDENT

JUDGE:

HELY J

DATE OF ORDER:

25 JULY 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application to set aside the bankruptcy notice be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7175 OF 2000

BETWEEN:

DONNA ANNE SUNDERLAND
APPLICANT

AND:

G & J DRIVAS PTY LTD
FIRST RESPONDENT

TELADO PTY LIMITED
SECOND RESPONDENT

JUDGE:	HELY J
DATE:	25 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to set aside a bankruptcy notice issued on 4 February 2000 at the request of the respondents.  The bankruptcy notice was issued on the basis of a default judgment obtained in the District Court.  The evidence filed by the applicant in support of the application falls into two categories. 

2. First, it consists of evidence from the applicant and her husband which if true, would establish that the bankruptcy notice was not served personally on the applicant on 8 February 2000 as the process server contends, but was served on the applicant's husband on 9 February 2000, who later that evening gave the documents which had been served upon him to the applicant.

3. It seems to me that the issue of whether or not the bankruptcy notice has been properly served is not an issue which arises in relation to an application to set aside the bankruptcy notice.  It is an issue which could arise on the hearing of a petition if Ms Sunderland wished to oppose the petition upon the basis that she was not served with a bankruptcy notice, and thus had not committed an act of bankruptcy.  I therefore propose not to determine the factual…