Re Neate, E.A. & Anor Ex parte Pegasus Leasing Ltd [1995] FCA 179

IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) ) No. SN 691 of 1994 GENERAL DIVISION ) ) BANKRUPTCY DISTRICT OF THE STATE ) ) OF SOUTH AUSTRALIA )

RE : ELIZABETH ANNE NEATE AND DAVID WILLIAM NEATE EX PARTE : PEGASUS LEASING LIMITED

REASONS FOR DECISION CORAM: O'Loughlin J. 30 March 1995 Application to set aside a bankruptcy notice. On 19 September 1994 the judgment creditor, Pegasus Leasing Limited, obtained a judgment by default in the District Court of South Australia against Anne Elizabeth Neate and David William Neate ("the judgment debtors"). The judgment creditor applied to this court for leave to issue a bankruptcy notice directed to the judgment debtors jointly. A sealed copy of the judgment was attached to that application. The relevant passage in the judgment was in these terms: "It is this day adjudged that the plaintiff" (i.e. the judgment creditor) "recover from the defendants" (i.e. the judgment debtors) "the sum of $648,673.99 (inclusive of interest) and its costs of action to be taxed." Difficulties were experienced in effecting personal service of the bankruptcy notice and, ultimately, on 10 November 1994, a Registrar of the court ordered that personal

service of the bankruptcy notice be dispensed with; he authorised service of the bankruptcy notice on the judgment debtors by ordinary pre-paid post. It was the case for the judgment creditor that service by post had been effected on both debtors in accordance with the terms of the Registrar's order. The bankruptcy notice, as amended, called on the debtors to effect payment "within fourteen days after the 24th day of November 1994" or to otherwise secure the payment of the judgment debt to the satisfaction of the judgment creditor by that date. Within that time, an application was filed in this court on behalf of the judgment debtors wherein they sought orders that the bankruptcy notice be set aside. In its final amended form their application contained, as the first ground, the following proposition: "It is defective in that the bankruptcy notice is directed to debtors who are not joint debtors and is not authorised by and is contrary to the provisions of the Bankruptcy Act 1966."