Dib v Yasmin Products Pty Ltd [1997] FCA 1615

JUDGMENT No. L0.4odeadl KZ2,7

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 7722 of 1997 GENERAL DIVISION ) No. NG 7723 of 1997

Between: MOHAMMED (AKA MICHAEL DIB) DIB Applicant

And: YASMIN PRODUCTS PTY LIMITED Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 27 OCTOBER 1997

This is an application for a review of a decision of a Registrar given on 30 April 1997. The facts are adequately set out in that decision and there is no point in repeating them again. The circumstances are unusual but the result seems to me to be clear. The first bankruptcy notice, which came something of the order of two and a half years after the final instalment of the judgment debt had been paid, did not contain and was not based on a valid debt. The evidence is that all the payments under

the agreement to pay by instalments were made and there is no

contrary evidence.

If there had been evidence that they had been paid late, as arises from some comments by the Registrar in her judgment, then

it seems to me that the applicant's default had been waived by

the respondent creditor because nothing at all was done to enforce the instalment payment regime and additional goods were supplied on credit subsequently. In my view, the creditor had waived whatever breaches there might have been in the instalment payment regime. But it is important to emphasise that, on the evidence in these proceedings, there is nothing to suggest that

payments were made late at all.

That means that the first bankruptcy notice had no significance at all and did not contain a debt. I know of no case in which a bankruptcy notice alleging a debt which was paid either before or after its issue has been set aside and I cannot imagine now why it would be. All bankruptcy notices are designed to attract payment. When they achieve this result, there is no call to set them aside, they just lapse or do not provide the basis for the issuing of a petition. The application to set aside the first