The Illawarra Credit Union Ltd v Olejniczak, Patrick

[1998] FCA 671

FEDERAL COURT OF AUSTRALIA

Bankruptcy - creditors petition - bankruptcy notice referred to two judgments not one - whether notice complied with Bankruptcy Act 1966.

Bankruptcy Act 1966 - ss 40, 41
Acts Interpretation Act 1901 - s 23(b)

THE ILLAWARRA CREDIT UNION LIMITED v PATRICK OLEJNICZAK
NG 7300  OF   1998

JUDGE:         BEAUMONT J.
PLACE:         SYDNEY
DATE:           26 MAY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7300  of   1998

BETWEEN:	THE ILLAWARRA CREDIT UNION LIMITED CREDITOR
AND:	PATRICK OLEJNICZAK DEBTOR
JUDGE:		BEAUMONT J.
DATE OF ORDER:		26 MAY 1998
WHERE MADE:		SYDNEY

ORDERS:

1. Make sequestration order against the estate of the debtor.

1. Order that costs as taxed be paid out of the estate, in accordance with the Bankruptcy Act 1966.

1. Suspend the operation of this order up to and including next Friday, 29 May 1998.  Reserve liberty to apply in the meantime.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7300 of 1998

BETWEEN:	THE ILLAWARRA CREDIT UNION LIMITED CREDITOR
AND:	PATRICK OLEJNICZAK DEBTOR

JUDGE:	BEAUMONT J.
DATE:	26 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

This is the hearing of a creditor's petition in bankruptcy. The act of bankruptcy relied upon is non-compliance with the requirements of a bankruptcy notice. The bankruptcy notice in question, issued under s 41 of the Bankruptcy Act 1966 (“the Act”), was unusual in that it referred not to a single judgment, but to two judgments obtained in the Local Court.

It is provided, in s 40(1)(g), that an act of bankruptcy is committed if a creditor has obtained against the debtor “a final judgment or final order” in the circumstances there specified. But further, the form of a bankruptcy notice is, by the provisions of s 41(1), to be in a prescribed form. By s 41(2) the notice must require, amongst other things, that the debtor -

“...pay the judgment debt or sum ordered to be paid in accordance with the judgment or order.”

The question then arises whether it is sufficient compliance with the relevant provisions of the Act that the notice refers not merely to one judgment, but to more than one - in this case, to two judgments.

I should say at once that there is no suggestion that the bankruptcy notice was, in any material respect, misleading. The question for my determination is whether as a matter of interpretation of the Act, it is not open to a creditor to seek to rely upon more than one judgment for present purposes. In my opinion, the provisions of s 23(b) of the Acts Interpretation Act 1901 are applicable in the present case. It is there provided that in any Act, unless the contrary intention appears, words in the singular number include the plural. In my view, there is nothing in the present context which would indicate any contrary intention.

It follows that, in this regard, the bankruptcy notice was valid and I propose now to proceed  to make a sequestration order.  I note the undertaking by the solicitor for the creditor to file with my Associate, a copy of a consent of the trustee.  On accepting that undertaking I make a sequestration order.

ORDERS

1. Make sequestration order.

1. Order that costs as taxed be paid out of the estate, in accordance with the Act.

1. Suspend the operation of this order up to and including next Friday, 29 May 1998.  Reserve liberty to apply in the meantime.

I certify that this and the preceding one (1) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             26 May 1998

Solicitor for the Creditor:	Kell Heard McEwan
Date of Hearing:	26 May 1998
Date of Judgment:	26 May 1998