Westwood v Nelson

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WESTWOOD v NELSON [2004] FMCA 474

BANKRUPTCY – Where respondent debtor opposing creditor’s petition – where bankruptcy notice prepared in accordance with old Form 1 and did not pluralise the words “judgment” and “order” as now required – where this error was pointed out by clerk of the Official Receiver – where handwritten amendments to the bankruptcy notice was made – where the result of these amendments was that not all copies of the bankruptcy notice were the identical – whether these amendments were authorised by the Official Receiver – whether the amendment rendered the notices confusing or misleading – whether the bankruptcy notice is invalid because the notice served was not a “copy” of the one filed with the Official Receiver – whether every copy of a bankruptcy notice is required to be identical.

Bankruptcy Act 1966 (Cth), ss.41(1), 50(1)
Bankruptcy Legislation Amendment Act 2002(Cth), Schedule 1
Bankruptcy Regulations 1966 (Cth), reg 4.01(1)

James v Federal Commissioner of Taxation (1955) 93 CLR 631
Blackshaw Services Pty Ltd v Cureton [2003] FMCA 591
Vincent v State Bank of NSW (1995) 60 FCR 290
Re DeIeso (1978) 24 ALR 701
Re Low; Ex parte Argentine Gold Fields Ltd (1891) 1 QB 147
Australian Steel v Lewis (2000) 199 ALR 68
Farrugia v Farrugia (2000) 169 ALR 503

First Applicant: AVRIEL ELWINA WESTWOOD

Second Applicant: GEORGE DESMOND WESTWOOD

Respondent: LORI ANN NELSON

File No: SZ 517 of 2004

Delivered on: 6 August 2004

Delivered at: Sydney

Hearing date: 22 July 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr R J Carruthers

Counsel for the Applicant: Blake Dawson Waldron

Counsel for the Applicant: Bowles Lawyers

ORDERS

1. Bankruptcy notice set aside.

2. Petition dismissed.

3. Creditors to pay the debtor’s costs to be taxed if not agreed according to the Federal Court Act and Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 517 of 2004

AVRIEL ELWINA WESTWOOD

Applicant

And

LORI ANN NELSON

Respondent

REASONS FOR JUDGMENT

1. These proceedings are the hearing of a creditor’s petition originally filed on 1 March 2004. The creditors claimed that the debtor owed them the amount of $323,079.89 pursuant to a judgment of the Supreme Court of New South Wales on 28 August 2003. In addition there were supporting creditors. On 1 April 2004 I made orders pursuant to s.50(1)(a) Bankruptcy Act 1966 that pending the determination of the petition Scott Darren Pascoe take control of the debtor’s property comprised of folio identifier 1/402835 and known as 155 River Rd Northwood. On 6 April 2004 the debtor filed Notice of Application to Oppose the Petition.  The grounds of the Notice of Opposition which are relevant to these proceedings are as follows:

   1.    The Bankruptcy Notice NN 2618/03 (“the Bankruptcy Notice”) which was served on the debtor on 27 November 2003 contains handwritten amendments at paragraphs 2,6(a), 7(b) and at Lines 1, 3 & 5 of the Schedule. Such amendments were not authorised by the Official Receiver or the…