Moeller, H.P. Re Dairy Farmers Employees Credit Union Ltd Ex parte [1988] FCA 194

IG4+ SZ

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF No. P2181 of 1987

NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

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RE: HANS PETER MOELLER

Debtor

EX PARTE: DAIRY FARMERS EMPLOYEES' CREDIT UNION LIMITED

Petitioning Creditor

CORAM: Davies J. DATE: 15 April 1988 PLACE: Sydney

REASONS FOR JUDGMENT EX TEMPORE In this matter there has been set aside for separate determination the question whether the bankruptcy notice No. Vv3443 of 1987, dated 2 July 1987, was a valid notice. The issues

raised are similar to those which were considered by me in Re

Edward Lyall Sly; ex parte Broadlands International Finance

Limited, delivered on 21 March 1988. In that case I enunciated

the following principles:-

"4

1.

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As provided in s.41(2) of the Bankruptcy Act 1966 (Cth)("the Act"), the bankruptcy notice must require the debtor to pay within the specified time "the judgment debt or sum ordered to be paid in accordance

with the judgment or order".

A bankruptcy notice which understates the amount of the judgment debt is invalid unless the notice makes it clear that nothing more than the specified amount is claimed to be due. As Romer L.J. said in Re H.B. (1904) 1 K.B. 94 at p.103, "Clearly, in a bankruptcy notice the debtor is entitled to see from the notice exactly what is claimed to be due on the judgment debt. No doubt a sum might be claimed which is less than the real amount due, and that would not of course be fatal to the notice so long as the notice made it clear that nothing more was claimed to be due on the judgment beyond the amount specified in the notice. But a notice to pay part of a judgment debt, leaving any balance that may be due to be

subsequently claimed, is, to my mind, clearly bad."

A purely formal defect or irregularity in the bankruptcy notice may be excused under s.306(1) of the Act but no understatement of the sum due will be excused if it was significant enough to be capable of misleading, perplexing or embarrassing the debtor. See e.g. Crowl and Others v. Kleinwort Benson