Re Harkins, Paul Patric & Anor Ex Parte Equus Financial Services Ltd [1995] FCA 970

IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT IN THE STATE OF VICTORIA No VP 868 of 1995 Re: PAUL PATRIC HARKINS and MAREE BERNADETTE HARKINS Debtors Ex parte:EQUUS FINANCIAL SERVICES LIMITED Petitioning Creditor Coram: Olney J Place: Melbourne Date: 22 November 1995 Reasons 29 November 1995 published: REASONS FOR JUDGMENT On 22 November 1995 I made sequestration orders against the estates of Paul Patric Harkins and Maree Bernadette Harkins (the debtors) upon the petition of Equus Financial Services Limited (the petitioning creditor). In the course of hearing the petition I rejected two grounds of opposition raised by the debtors. At the time I indicated that I would give short written reasons for so doing. I now publish my reasons. The petitioning creditor relied upon acts of bankruptcy said to have been committed by each of the debtors on 5 June 1995 being the failure to comply with the requirements of a bankruptcy notice served on them on 22 May 1995. So far as relevant for present purposes, the bankruptcy notice was in the following form: WHEREAS EQUUS FINANCIAL SERVICES LIMITED of 1st Floor, 424-430 Smith Street, Collingwood in the State of Victoria (hereinafter referred to as "the judgment creditor") has claimed that the sum of $840,661.49 being the judgment amount of $628,999.02 together with interest in the sum of $211,662.47 accrued thereon under the Penalty Interest Rates Act 1983 at the rate of 13.2% per annum for the period 29 October 1992 to 17 May 1995 inclusive is due by you under a Final Order obtained by it against you in the Supreme Court of Victoria at Melbourne on the 28th day of October 1992 being an order the execution of which has not been stayed: THEREFORE TAKE NOTICE that within fourteen (14) days after service of this notice on you, excluding the day on which this notice is served on you, you are required - (a) to pay the sum of $840,661.49 so claimed by the judgment creditor to the judgment creditor; or (b) to secure the payment of the sum referred to in the last preceding paragraph to the satisfaction of the Federal Court of Australia or the judgment creditor or compound the sum so specified to the satisfaction of the judgment creditor. The application for the bankruptcy notice was supported by a document entitled "General Form of Order" which bears the seal of the Prothonotary of the Supreme Court of Victoria and which relates to proceeding 6773 of 1992 in the Supreme Court of Victoria between the petitioning creditor as plaintiff and the debtors as defendants. The relevant parts of the order are as follows: GENERAL FORM OF ORDER JUDGE: The Honourable Mr Justice Hedigan DATE MADE: 28 October 1992 ORIGINATING PROCESS: Origination Motion HOW OBTAINED: At the hearing of the Motion ATTENDANCE: Mr A. Vassie, of Counsel for the Plaintiff. Mr G. Watkins, of Counsel for the Defendants. OTHER MATTERS: Not applicable THE COURT ORDERS THAT: There is judgment for the Plaintiff against the First and Secondnamed Defendants as follows: 1(a) In respect of the guarantee of P.P. Harkins Bricklayers, in the sum of $372,135.62 principal and interest to 29 September 1992, and interest on the principal sum, $301,172.00 from 29 September 1992 to this date, $5,276.78, a total amount of $377,412.40 (b) In respect of the guarantee of Harkins Nominees, the sum of $248,069.05 principal and interest to 20 September 1992, plus interest in the sum of $3,517.55 to this date, on the principal of $200,646.00, a total sum of $251,586.60 ... DATE AUTHENTICATED: 31 December 1992 L.S. (Sgd) DEPUTY PROTHONOTARY