NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA EXERCISING FEDERAL JURISDICTION 1386 > = Oo ba]w tJ uu ry IN BANKRUFTCY BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA Re : KENNETH JOHN RICHARDSON and RAELENE CHERYL RICHARDSON Judgment Debtors Ex parte: GERALD GLEESON, LORNA GLEESON and DARYL GLEESON Judgment Creditors COURT: NORTHROF dg. DATE: 30 OCTOBER i936 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT This is the return for the hearing of a petition in which the judgment creditors, Gerald Gleeson, Lorna Gleeson and Daryl Gleeson, are seeking a sequestration order against the judgment debtors, Kenneth John Richardson and Raelene Cheryl Richardson. The petition 1s founded upon a non-compliance with a bankruptcy notice, Notice of Opposition to the petition has been aqiven on behalf of the judgment debtors and the ground stated 15 as follows:- ~- ot as FeO STRALIA \% PRINCIPAL \ Y REGISTRY "That the Notice sf Bankruptcy upon wnich the Petition is founded 15 bad in that it does not comply with the Bankruptcy Act or Rules in naming both Judgmenc Debtors on the ne Notice, Accordingly, there nas been no ace af bankruptcy and the Fetiticon 15 without foundation. ' 1 Ob The parties have agreed that the issue caised by that grouna should be argued separately aS a preliminary 1ssue before considering other matters raised in that notice or opposition, and tne Court has agreed to anopr that course. The bankruptcy notice in the present case is dated 3 June 1386 and is based upon a judgment of the Supreme Court of the State of Victoria which was made on 25 March 1986 in which the judgment creditors were named as plaintiffs and the judgment debtors were named as defendants. The order was that the judgment debtors pay to the judgment creditors an amount of $285,000 and as far as I " encw, there has been no stay of that judgment, although part of the money was not due to be paid before 14 April 1986. The bankruptcy notice was issued after that date, 14 April, and in the bankruptcy notice the judgment debtors are named as the debtors and the creditors as the judgment creditors and is directed to the two debtors and requires them to pay the sum of $285,000 which is due to the judgment creditors under a final judgment obtained against the debtors in tha Supreme Court at Melbourne on 25 March 1986 being a judgment the execution of which has not been stayed. BD The submission on behalf of the judgment debtors is based upon a consideration of sub-section 41(1) of the Bankruptcy Act, paragraph (a) of which reads:- "@1(1) A bankruptcy notice - {a) shall he in accordance with the Pa prescripved form;". Reference should be made also to sub-section 41(2) which contains provision as to what must be in the prescribed form and I read part of that sub-section: - "41(2) The prescribed form of bankruptcy notice shall be such that the notice (a) requires the debtor" (note the singular) "named in 1t, within a specified time" and I can ignore the time provisions. In sub-paragraph Ci1ade- "(1i) secure the payment of the debt or sum to the satisfaction of the Court or the creditor or his agent ... ." Reference to Form 4 of the Bankruptcy Rules, which 15 the relevant Form by reason of rule 8 of the Rules, provides: - "8 For the purposes of paragraph 4+(1)(a) of the Act, a bankruptcy notice shall be in accordance with Form 4.° It 15 apparent that the Form 15 pr2pared on the basis of a debtor. It reads: - "To: (mame, address and occupation of judgment debtor) WHEREAS (name and address of judgment creditor) (hereinafter referred to as 'the judgment creditor')" and then the Form is all directed tc the debtor ain the singular. Counsel for the debtors has highlighted these provisions and contrasted them with sub-section 46(1) which 1s a section dealing with the Court procedures in relation to petitions and which provides that:- "$6(1) A creditor's petition May be presented against 2 or more joint debtors, whether partners or not." He argued that on its proper construction, sub-sections 41(1) and (2), rule 8 and Form 4 all require the word "debtor" to be construed in the singular and not to include the plural, "debtors". He relies upon a number of reasons, for instance, relying upon a rule of construction that express provision as to one type of matter does not include other matters and hence the reference here to debtor does not include debtors. He relies upon the fact that in bankruptcy proceedings there 1S a requirement for strict compliance with the Act and the Rules. He argued further that there is a contrary intention within the meaning of 5.23 of the Acts Interpretation Act 1901. That section, in substance, provides that unless a contrary intention appears in any Commonwealth Act, the singular includes the plural. If that section does apply, in 5.41 of the Bankruptcy Act, the use of the word "debtor' would include the plural as in the Form 4+ also unless a contrary intention applied. He relied upon sub-section 46(1) as indicating a contrary intention, But in mv opinion, thac section cannot be used in any way at all fcr that purpose. It 15 dealing with something differant altogether. In my opinion, s.23 of the Acts Interpretation Act does apply and there is no contrary intention whatsoever as far as 5.41 is concerned and as far as Form 4 is concerned. Section 41 makes reference in sub-section (2) to the word "debtor" only and to the word "creditor" only; does not use the plural of either cf those words and there is nothing in that section to suggest that there 15 a contrary intention. Section 23 of the Acts Interpretation Act does apply s0 that in 5.41 the word "debtor" includes the plural, "debtors", and tne word "creditor" includes the plural, "creditors". If necessary, support for that view can be had by a reference to the requirement that a creditor can obtain a bankruptcy notice; Form 4 uses the words "judgment creditor", and it 15 in my view inconceivable that the use of the words "judgment creditor" in that Form is to be construed as meaning a single creditor only and not two or more creditors. In fact, there would be difficulties in law where there are Joint creditors if one creditor oniy were to issue a bankruptcy notice ocecause che payment oy che debtor to the other joint creditor would be a full discharge but a non-compliance with che bankruptcy notice itself. In support of his contentions, counsel for the judgment debtors pointed out what he described as anomalies that would arise if two debtors could be named in the bankruptcy notice, namely, that one debtor may pay the amount of the debt, but the other debtor would st111 be in breach of the notice. On one view that might be correct, but the sama result would arise 1f two bankruptcy notices had been issued against each of the judgment debtors, one of whom had paid and the other one had not. There would still be a non-compliance with the second bankruptcy notice. The solution there 1s that the debt having been paid, nothing further could be done about it as far as the judgment creditors were concerned. For those reasons, the submissions made on behalf of the judgment debtors are rejected and it 1s held that the bankruptcy notice does comply with the Act and the Rules and accordingly, the Court should proceed to deal with the other matters raised by the notice of opposition. were Lew f«~ —_ U certify that this and the Wwe (s) preceding pages are a true copy of the Reasons for fudgmert herein of the Honourable Mi. Justiie NOG rhc aint LScarcdle Associate Dated: 20\10\&