; Dis 71 BU TIOW aN OTHE FEDERAL CouPpT OF AUSTRALTA atm FL bea] fe) try wo Oo Nn Q ty a wu Qu wt wee SSS a-yTtee OJ RE: PETE? WILLIE OJICOK Petitionming Treac.ltir TOPAM: JACKSON J. DATE: 4th Pebruary 1936 DOLACE: MELBOTRNS MINUTES OF OFDER The Coucet socders cthac: i, A sequestration order be made against the estate of the debtor Z Costs, inclucing reserve2 costs, Lt taxed and paid aceccrding co the Act, Nate: et y of orders is dgealt with in IN THE FEDERAL COURT OF AUSTRALIA ) ) GENERAL DIVISION ) ) BANKRUPTCY DISTRICT OF THE STATE OF ) No. P995 of 1985 ) VICTORTA A) RE: PETER WILLIAM OUICK Debtor EX PARTE: BARRY JOHN JAMES Petitioning Creditor CORAM: JACKSON J. DATE: 4th Februacy 1986 PLACE MELBOURNE REASONS FOR JUDGMENT On the hearing before me of a petition for a sequestration order in respect of the debtor, the ground of bankruptcy relied on being that referred to in s.40(1){g) of the Bankruptcy Act 1966, two questions have arisen. The first question is whether the order on which the bankruptcy notice is based 1s a "final judgment or final order" in terms of s.40(1)(g). The order in question 1s an order made by the County Court of Victoria at Ballarat on 3 October 1983, whereby the debtor, who was convicted on 84 counts of theft, was sentenced to a term of imprisonment and an order was also made pursuant to s.546 of the Crimes Act 1958 that the debtor pay the petitioning creditor the sum of $101,760.52. Orders, to one of which I shall refer later, were also made for the payment of sums to other persons as well, also by way of ccmpensation. $.546(1) of the Crimes Act 1958 provides relevantly that "(1) Where in any procedings for an offence, whether upon presentment or summarily, a person - (a) 15 convicted for an offence; or tb) without being convicted for an offence 15 ordered to be released upon entering into a recognisance conditioned for his appearance at a later time and for his good behaviour in the meantime; or (c) has a probation order made against him under Division l - the court or judge may, immediately after ths conviction or order @ndon the application of any person suffering toss or destruction of or damage to his property through oc by means of the ozfence, order the person so convicted or released or place on probation to pay compensation for any such loss destruction or damage such sum not exceeding the value of the property lost destroyed or damaged as the court or judge thinks fit." and s.546(3) gces on to provice that: "Every such order shall be deemed to be a judgment debt due to the applicant by the person so convicted or released or placed on probation and payment of the amount of the order or of any amount remaining unpaid under the order may be enforced in any manner in which a judgment or order for a civil debt may be enforced in the court in which the proceedings are brought." The provisions of 3.546(3), of their own force could not of course operate to bring an order made under s.546(1) within the concept of a "final judgment or final order" in terms of s.40(1)(g) of the Bankruptcy Act 1f those words would not otherwise comprehend such an order." It 1s clear that in Re Borg (1965) A.L.R. 926 Mr Justice Clyne was of the view that an order made under s.546(1) of the Crimes Act was not a "final order" or a "final judgmert", in terms of the then s.52(3) of the Bankruptcy Act 1924 to 1960. Since then, however, the provisions of ¢.40(3)(b) of the Bankruptcy Act 1966 provide that: "For the purposes of paragraph i(g)- (b) a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which 1t was obtained." It is unnecessary, in these circumstances, tc consider whether the order for compensation would be a "final order" in terms of s.40(1)(g) within the ordinary meaning of that term. The second question to which it is necessary to direct attention derives from the fact that, as well as being ordered to pay $101,760.52 compensation to the petitioning creditor, the debtor was also ordered to pay $10,500 compensation to the petitioning creditor and to Lois Ellen James jointly. Further, the debtor was ordered to pay Sylvan Crest Nominees Pty Limited a sum of $18,052, and also to pay the sum of $2500 to Andersons Smash Repairs Pty Limited. The question which arises 1s whether, by virtue of the fact that in addition to being ordered to pay the sum of money to the petitioning creditor severally, the debtor was ordered to pay the sum of $10,500 to the petitioning creditor and to Lois Ellen James jointly, it has the effect that there has been in the bankruptcy notice an understatement of the amount due by the debtor. The general principle is, of course, that stated by Mr Justice Lockhart in Re Thomson Ex parte Associated Midland Corporation Limited (1981) 53 F.L.R. 97, at 101 where, summarizing the effect of the cases, his Honour said: "Whether a defect in a bankruptcy notice is fatal or a formal defect or irregularity under s.306 of the Act, depends on whether the defect is of such a kind as could reasonably mislead the debtor upon whom it was served. The test 1s not whether the debtor was in fact misled. It is surficient that he could be mizled." and his Honour went on to cite various cases in support of that. It seems 20 me, however, that in the present case each of the orders for compensation which was made in the County Court was an order which gave rise to a separate obligation on the part of the debtor and that the fact that ra the bankruptcy notice Was founded upon one only of the orders which was made does not mean that in any way there was an understatement in any relevant sense. In these circumstances, the case seems to me to be one which does not require the exercise of any power under 5.306. It seems to me that that point has not been reached. In the circumstances, I propose to make a sequestration order, which I shall now proceed to do. I am satisfied that the debtor has committed the act of bankruptcy alleged in the petition. If am satisfied with the proof of the other matters, of which s.52(1) of the Act requires proor. I note that Dennis Michael Foley, a registered trustee, has consented to act as the trustee of the estate of the debtor. I make a sequestration order against the estate of the debtor. Tf order that costs, including reserved costs, be taxed and paid according to the Act. I direct that a draft of this order be délivered to the Registrar within seven days in accordance with r.24. portacne teeta nue oe saree a ane