TAICHMORDS ti ct Sat a nom et c CT v) st ' ty @mr bey c ue ow C + Fal rs) O é@ based on judgment entered in we c re] ts o =] a a Cc rs crw TH ze] Fel) rr sycot % ry ry a] La an formal qudament - amount judgment as entered - vhether notice valid - dvscreticn ct Court In Be Yowes; Ex parte duaghes (1997; 2 3.8. 528. Tommenwealth of Australia v. MiCormack (2524) FF ALLLF. Lee. BE; HELEN DE FERRO: ES PARTE SRUCE HO:TE & ROSALIE HOSTE Beaumont, J. Note: IN_THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. Pi98 of 1286 AND THE AUSTRALIAN CAPITAL TERRITORY) RE: HELEN DE FPEPRO EX PARTE: BRUCE HOSIE & ROSALIE HOSTE MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: + June 1986 Where made: sydney THE COURT ORDERS THAT: 1. I am satisfied. for the Purposes af 3.52(1A)(b) (12) of the Act, that the petitioning creditors have been unable to obtain from registered trustees consent under s.156A¢1). iy Io make a sequestration order éestate of the debtor. da . TIT order that costs (including against the resecved costs) be taxed and paid according to the Act. i. I suspend the operation of order AA up to and including 25 June 1986. Settlement and entry of orders is dealt with in Bankruptcy Rule 124. il] THE FEDERAL COURT JF AUETRALTA ' GENERAL DIVISION \ BANFRUPTC? DISTRICT JF NEW SOUTH WALES \ No. PLoe of L365 AND THE AUSTRALTAN CAPTPAL TERRITORY. ert xE: HELEN DE FERRO | Ex PAPTE: BPUCE HOSTE % FOCALTIE HOSTE CORAM: Beaumont, g. DATED: 4 June 1996 The petitioning créaitor seeks a sequestration cerier sf ead ti) estate of the debtor, alleging that an ast <cf bankruptcy occurred when the debtor failed to comely with a bankruptcy notice requiring the payment cf a debt due under 43 judgment obtained in the Suersme Court of New South Wales. The debtor opposes the making cf a gequestration cease: op two grounds. In the firgse place, she challenges the validity Folilsws. on €& December 1924, for reasons he then gave, McLelland Viaintirfs and the debtor as de "1. Dire: that tdudament be -4ntered for the plaintifffs aqainst the defendant in the sum of 315.000 plus interest as hereinaftcier ordered. 2. Order pursuant to 5.34 of the Supeeme Court Act 1970 that there be included in the sum for which judgment 13 given as aforezaid interest at the rate of 15% per annum on 310,000 from 17th June, 13382 to date. Order that the defendant pay the plaintiffs' costs st the proceedings." las Qn 28 March 1984. qyudgment was entered in tha Surgce as follows: "Judsament 1, That che Defendant pay + $13,657.90 the Plaintiffs G by i) a. This wudgment takes effect sn 5 Decem 1994...." The sum of $18.657.90 was apparantly intends fo pick up the aunterest ordered to be paid unie 3.94 of the Supreme Court Act 1370 .N.3.W. a a The bankruptcy notice. so far as ralevant., provided: HELEN CE FEFRO of & Mona Read. Darling To: Point, Property Investor. WHEREAS BRUCE HOSIE and ROSALIE HOZITE both of $/40 Wunulla Read, Point Piper in "he State of New South Wales, shereinafter referred to as "the judgment creditors") have claimed that the 3um cof eighteen thousand six hundred and fifty seven dcellars and ninety cents (318,657.90) as due by you to them under a final judgment obtainei by them against you ain the Supreme Court of New South Wales cn the 6th dav of December 1334. being a judgment the execution cf which has not been staved: THEFEFORE TAKE NOTICE: that within fsrurteen days after service sf thre nctrce on wou, axciuding the day on whicn this notice iz zerved on you, you are required: fa) to pay the sum of $18,657.70 30 claimed by the judgment creditors to the judgment creditors or...." It was submitted on behalf of the debtsr that ths natice was bad because the amount claimed in it was less than 'he amcunt due under the jJudgment. In support of this submission. 1€ was rtlaimed that the judgment entered understated the amount cf interest due and that the correct amount due, acccrdina <2 the ordecs made by McLellana ¢.. was 318,792.30 tather than the sum of 317.657.%0, Ga behalf af the petiticning cresditors, 12 was accected that some understatement "ad oecurred, although the ezact amount was disputed: according to their caiculations, the correct figure should have been 318.715.0606. Nething turns cin this particular point, since, as 'as been said. 1t is czommen ground that the notice understated the amount of interest due to some extent. In my opinion. the bankruptey notice vas not vyitiated by the alleged failure of the judgment =ntézed in the Supreme Taurc to reflect a 'correct calculaticn cf the amount rf anterest sedered to be paid by McLelland J. It is trite law that a hankrugtivy notice must Fsliiw the yudgment according to its terms ''ze6 Hushnss (13892: 2 9.8. 628). It is alao trit2 law that. under the "slip cule" and inherently. the Supreme Court nas power to vary a 4. formal jiudament where a4 clerical mistake has occurred (see Zupreme Court Pules, Pt. 20 ¥.1lO(1!; Commonwealth of Australia +, McCormack (1984) 55 A.L.R. 185). But, unless and until so varied, a formal judgment of 4 Superior court of record 15 final and conclusive (see Halsbury 3 Laws af England $th ed. at p-272). No application has been made to vary the judgment entered in the Supreme Court. Thus, at the time of issue and service of the bankruptcy notice, that judgment stood and must be accepted as then enforceable in its terms. The bankruptcy notice Followed the judgment according to 1ts terms. Tt fsllows 'chat the challenge to the validity of the notice must be rejected. In the gecond place. the debtor submits that the Court, in 1ts discretion, should not make a sequestration order because of the axistence of a claim brought by the debtcr against the petitioning creditors in the Equity Division of the Supreme Court of New South Wales. A atatement cf claim. a copy of which 15 annexed to these reasons. was filed on behalf of the debtor on 2 December taken no ur ua 1983. But it appears that the debtcr ha teps co ute the action. Moreover, the mature of the various causes "OG n ay tn wo a o bal fu Ca tT t oO n alleged in the statement cf claim 15 ambiguous, to say the least of it. It further appears that no attempt was made on behalf of the debtor to raise this cause of action by waz of syoss-claim in che z11t heard by McLeliand I. In adziticn, th io 5. debtor did not seek. in this Court. to adduce any evidence in support of the allegations made in the statement of claim. The debtor was content merely to tender the statement sof claim and made no attempt to establish that her claims had any merit or p i) fs ct by it) cw ct om a) In these circumstances. I am not persua debtor has made out aocase for the axercis2? of the Court = aiscretion in her favour. I peopose tc make a sequestration srder. but tc suspend f£ the order for a period of 21 days. cr Yr oD is | ful ty w cr pe a o is] PEA : 2.72. $3 ee IN THZ SUPREME COURT OF NEW SOUTH WALES " SYDNEY REGISTRY EQUITY DIVISION xo BG 4a 1983 Plaintiff BRUCE HOSIE and POSALIE HOSIE Defendants STATEMENT OF CLAIM 207 BILLINGTON Ǥ CO, olicitors, Suite 4, 2nd Floor, The wallaceway, Yelp Street, CRATSWCOD. 2067 3X 479 Sydney Tel 414-4512 1. The Plaintiff is and was at all aterial times the registered proprietor and owner of Property <nown as 6 Mona Road, Darlirg Point 2. In or about June, 198] tne Placntifé commenced wor< to renovate the sailé@ proverty, which fact was «e211 known to the Defendants It was also well <nown to the Defendants that fo enable tne property tne purpose of the renovations was/to be sole at a profit as soar as possizle 3. The Defendants, well «nowing the Plaintiff dntended to sell the sa:d vroperty as socn as Tenovations were conplete wrongfully end w.te fntent to injure the Plaint ff vrocare? delavs and® disputes in tne pertormance of the renovations 4. PARTICULARS a) inducing property owners to conpe@el her to us b) a) more expensive shoring Procuring servants of Woollahra Courcal to issue "stop work" orders and to ot-erwise unduly closely superintend the work thereby causing lengthy and costly delays causing dispute over the boundary wh.c1 still exists despite tne area being sirveyed three tines and the new fence erected on the boundary having been constructed under close scrutiny py Inspectors of the Woollahra Municipal Council thereby causing sale difficulties Harassing workmen and causing other neighbours to taxe action against tre Plaintiff causing further delays 2/ - 2-6 Fa 3 The Plazne:ff bas, by reason of the aforesa.2, lose ZY —_— she benefit of sale of the prepercy and nas seen pur to ireusle and irecenverLence arc has suffered dan-aze 6 PAPTICJLAPS {a) Loss of profit on sale $.38,033 92 (>) Extra expenses of shoring $ §,990 39 ic) Extra survey 3 soc 90 {d} Legal costs (est } $ .3,005 05 —_———~ 7 The Pleints£S clains damages ais -nterest for $s ch perlod and at Sicn rate as tre Court deems fic DATED r To TYE DEFENCANTS of 8 Mona Road, Darling Point 1 You arg liab_e to sutfer judgmenc or an order ayainst you unless the prescrined form of notice Of your apowarante 1s re- ¢eavad £1 trea Registry withia fourceen (14) days atter service of this Statement of Claim upon you ans you comoly with che Rulas of Taourt relating to your Defence NOMINATEO PLACE FOR TRIAL Supreme Court of New Sour walas, Quean's Square, S,d-ev NOMINATED TI DLAINTIFE HELENA SE FERRO PLAINTIFF'S ADDPESS FOR Wer De SERVI ton & CO SoO.isrisors, Tee wallaceway or, sswo20d, 255 Telesnrore 411 45.2 ADDRESS 3F REGISTRY Supreme Court, Equicy Diviaion, Queen's Square, Sydney, 2:09 AFFIDAVIT ra December, 13983, =I, RO of 6 Mona Pad, Darl.rg to in che State of N.S.a , Autroress, sav on Oatn ES am the Plaiccifft zt in the statement cf page are trve bel.teve tnat she allegations of fac sat our asove and on the preceding; SHORN at Dar.ing Poine an the ) day ard year first harainzefore ) wratce 1, sefore ne )