QUDGMENT No. =037 S? ~~ re A CATCHWORDS BANKRUPTCY - Whether a bankruptcy notice is defective if it claims interest on the judgment debt to a date specified in the notice which is earlier than the date of issue of the notice but does not expressly abandon any claim for interest accruing after the date specified - requirements for validity of a bankruptcy notice. Bankruptcy Act 1966 (Cth): ss. 40, 41, 82 Federal Court of Australia Act 1976 (Cth): s. 25 NEIL 8. FOSTER EX PARTE: DEPUTY COMMISSIONER OF TAXATION P2517 of 1987 COURT: SWEENEY, LOCKHART and BURCHETT JJ. 4 JULY 1988 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT IN THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN PITAL RRITORY No. P2517 of 1987 —~e TY RE: NEIL S. FOSTER Debtor EX PARTE: DEPUTY COMMISSIONER OF TAXATION Respondent JUDGES MAKING ORDER: Sweeney, Lockhart and Burchett JJ. DATE OF ORDER: 4 July 1988 WHERE ORDER MADE: Sydney MINUTES OF ORDER The question asked in the case stated pursuant to sub-s. 25(6) of the Federal Court of Australia Act 1976 is as follows: Is the bankruptcy notice defective by reason only of the fact that it claims interest to a date prior to the issue of the notice but does not waive or abandon any claim for interest accruing after the date specified in the notice? We answer the question asked in the case as follows: The bankruptcy notice is not defective by reason only of the fact that it claims interest to a date prior to the date of the issue of the notice and does not in terms abandon or waive any claim for interest accruing after the date specified in the notice. It is unnecessary for the Court to answer any of the other questions raised by the stated case. THE COURT ORDERS THAT: There be no order for costs with respect to the stated case. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) GENERAL DIVISION ) BANKRUPTCY DISTRICT IN THE STATE ) No. P2517 of 1987 OF NEW SOUTH WALES AND THE °°") AUST APITA! RRITORY ) RE: NEIL S. FOSTER Debtor EX PARTE: DEPUTY COMMISSIONER OF TAXATION Respondent COURT: Sweeney, Lockhart and Burchett JJ. DATE: 4 July 1988 PLACE: Sydney REASONS FOR JUDGMENT THE COURT On 26 May 1988 this Court heard argument on a stated case in this matter of Foster and in a related matter of Alfred Farrugia (No. P2472 of 1987). The two matters were heard together for convenience and at the request of the parties. The same question arises in each case. As we have given full reasons for judgment in the matter of Farrugia we need not repeat them in this matter of Foster. The form of the bankruptcy notice in Farrugia differs slightly from the form in Foster in that here the bankruptcy notice claims interest from the date of judgment, namely, 5 May 1983 which at 28 April 1987 amounted to $1,788.58 making a total of judgment and interest of $4,687.28. 2. The date to which interest is claimed is not specifically stated as it is in the Farrugia notice. Also,in the case of Foster there was a delay between the date of application for the issue of the notice and the date of its issue of several weeks. In our opinion it is plain on the face of the notice in Foster that the interest component claimed by the creditor from the debtor is the sum calculated to the date specified, namely, 28 April 1987. The notice requires the debtor (Foster) to pay the sum of $4,687.28 as the amount "so claimed" by the creditor or to secure the payment of that sum or compound the sum in order to comply with the notice. It is plain on the face of the notice that, if the debtor pays $4,687.28 or secures or compounds that sum in accordance with the notice, he will comply with the notice and that, if he does not either do so or satisfy the Federal Court of Australia as to a counter-clain, set-off or cross demand equal to or exceeding that amount, he will commit an act of bankruptcy. There is, therefore, no material difference between the notices in Farrugia and Foster with respect to the question before us. Accordingly, we answer the question in this stated case as follows: The bankruptcy notice is not defective by reason only of the fact that it claims interest to a date prior to the date of the issue of the notice and does not in terms waive or abandon any claim for interest accruing after the date specified in the notice. As no order for costs of the stated case was sought we make no order for costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court. Associate AT Code Dated: 4 July 1988 Counsel for Petitioning Creditor: Mr. mM.R. Aldridge Solicitor for Petitioning Creditor: Australian Government Solicitor . - Date of Hearing: 25 May 1988 Datee of Judgment: 4 July 1988