Re; Ken Brown Ex Parte Hunstead, Jane [1984] FCA 351

351 CATCHWORDS

Bankruptcy - defect in bankruptcy notice - omission

of paragraph B of prescribed form.

James v. Federal Commissioner of Taxation (1955) 93 C.L.R. Re Wong; Ex parte Kitson (1979) 27 A.L.R. 405 - con.

Bankruptcy Act, 1966, ss.41, 306

KEN BROWN Ex parte: PENELOPE JANE HUNSTEAD

No. P.1629 of 1984

Beaumont, J. 2 November 1984 Sydney.

631 - cor

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

) ) BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE

)

AUSTRALIAN CAPITAL TERRITORY No. P1029 of 1984

Re: KEN BROWN

Debtor

Ex parte: PENELOPE JANE HUNSTEAD

Creditor CRDER Judge making order: Beaumont, d. Date order made: " 2 November 1984 Where made: Sydney

THE COURT ORDERS THAT:

1. Petition dismissed.

2. No order as to costs.

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE

AUSTRALIAN CAPITAL TERRITORY No. P1029 of 1984

Re: KEN BROWN Debtor Ex parte: PENELOPE JANE HUNSTEAD Creditor

CORAM: Beaumont, J.

DATED: 2 November 1984.

REASONS FOR JUDGMENT

Upon the hearing of the bankruptcy petition in this matter, it appeared that the bankruptcy notice relied upon by the petitioner departed from the prescribed form in one important respect: although the notice required the debtor to pay the judgment creditor the amount claimed unier the judgment debt (paragraph A), the alternative provided by s.41(2)(a)(ii) that the debtor may secure the payment of the debt or compound the debt as therein provided was struck

out. The word "or" and paragraph B in the prescribed form

were struck out.

In my opinion, this defect is fatal. James v.

Federal Commissioner of Taxation (1955) 93 C.L.R. 631 (at pp.643-4), emphasises the importance of the statement in a pankruptcy notice that the debtor has the alternative of securing the payment of the sum claimed or of compounding it in the manner provided by s.41(2)(a)(ii). Those