Thompson v Metham

[1999] FCA 935

FEDERAL COURT OF AUSTRALIA

Thompson v Metham [1999] FCA 935

BANKRUPTCY - validity of bankruptcy notice - whether notice in required form - whether copy of judgment relied upon by creditor attached to notice - where document attached not in proper form and contained errors as to date and terms of judgment - whether sum specified in notice exceeded amount in fact due - whether fresh notice had been issued - whether overstatement by over 50% of the amount due automatically invalidated notice -  whether notice could reasonably have misled debtor.     

Bankruptcy Act 1966 (Cth) ss 41(2), 41(5), 306(1)
Bankruptcy Regulations (Cth) regs 1.03(2), 4.02(1), 4.02A(2)(b), Sch 1
District Court Act, 1973 (NSW) s 85(2)(a)
District Court Rules, 1973 (NSW) Pt 1 r 6
District Court Forms (NSW) Forms 64, 66

Palmer v Clarke (1989) 19 NSWLR 158, cited
St George Bank Limited v Klintworth (1998) 157 ALR 286, followed
Re Scerri (1998) 82 FCR 146, followed
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71, cited
Commonwealth Bank of Australia v Horvath (1999) 161 ALR 441, followed
American Express International Inc v Held [1999] FCA 321 (Kenny J; unreported; 29 March 1999), followed
Seovic Civil Engineering Pty Limited v Groeneveld (1999) 161 ALR 543, followed
Re Serafino; Ex parte Classic Manufacturing Pty Ltd (1989) 86 ALR 283, cited
Re Greenhill; Ex parte Myer (NSW) Ltd (1984) 5 FCR 84, cited
Re Emerson; Ex parte Wreckair Pty Ltd (1991) 101 ALR 315, cited
Re Walsh (1982) 65 FLR 87, cited

IN THE MATTER OF ALAN THOMPSON; ALAN THOMPSON  v BRIAN ROGER METHAM

N 7320 OF 1999

KATZ J
SYDNEY
9 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7320 OF 1999

IN THE MATTER OF ALAN THOMPSON;

BETWEEN:	ALAN THOMPSON Applicant
AND:	BRIAN ROGER METHAM Respondent
JUDGE:	KATZ J
DATE OF ORDER:	9 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   Bankruptcy Notice No NN0073 of 1999 be set aside.

2.   Within two days of entry, the respondent provide a copy of these orders to the Official Receiver in Sydney.

3.   The respondent pay the applicant’s costs of the proceeding.

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 7320 OF 1999

IN THE MATTER OF ALAN THOMPSON;

BETWEEN:	ALAN THOMPSON Applicant
AND:	BRIAN ROGER METHAM Respondent

JUDGE:	KATZ J
DATE:	9 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On two grounds, Mr Alan Thompson (“the debtor”) disputes the validity of a purported bankruptcy notice (“the notice”) served on him by Mr Brian Roger Metham (“the creditor”) on 6 March 1999.

2. The first ground of invalidity alleged by the debtor is that the notice was not in the required form. I set out immediately below the three statutory provisions on which reliance is placed in making that allegation.

3. First, subs 41(2)…