Haros, Gabriel George & Anor v National Australia Bank Ltd [1997] FCA 1391

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7478 of 1997

RE: GABRIEL GEORGE HAROS and IRENE HAROS

Judgment Debtors

AND: NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937)

Judgment Creditor

JUDGES: RYAN J

DATE: 24 NOVEMBER 1997

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: This petition raises the question of the sufficiency of service of a bankruptcy notice which, as served and annexed to the affidavit of service, did not have attached to it a copy of the judgment or order on the basis of which the bankruptcy notice had been issued. Regulation 4.01 of the Bankruptcy Regulations provides: 1. In order to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver: (a) a duly completed draft bankruptcy notice; and (b) one of the following documents in respect of the final judgment or final order specified by the person on the approved form: (i) a sealed or certified copy of the judgment or order; (ii) a certificate of the judgment or order sealed by the court or signed by an officer of the court; (iii) a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the court or signed by an officer of the court; (iv) in the case of an award referred to in paragraph 40(3)(a) of the Act: (A) a copy of the award certified as a true copy by the arbitrator who made the award or, failing the arbitrator, by an officer of the court after having compared the copy with the original award; and (B) a sealed or certified copy of the order giving leave to enforce the award; and (c) a copy of the draft bankruptcy notice for the Official Receiver's records and sufficient additional copies of the draft bankruptcy notice for service and for annexure to any required affidavits of service. Form 1 of the forms specified in Schedule 1 to those regulations prescribes the form of the bankruptcy notice and provides by Item 2 of that form: The creditor claims that the debt is due and payable by you. A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order had not been stayed. There is also provision for the supply to the debtor of an analysis of the amount claimed into amount of judgment or order, legal costs if ordered to be paid and, (if claimed in the bankruptcy notice), interest accrued since the date of judgment or order. Note 2 to that part of the form requires that: If interest is being claimed in this Bankruptcy Notice, details of the calculation of the amount of interest claimed are to be set out in a document attached to this Bankruptcy Notice. Details are then given of what is required to be set out in that document in relation to interest. It is common ground that the bankruptcy notice in the present case had attached to it the requisite interest schedule, but did not have attached the judgment or order. The judgment or order relied on was that pronounced by Master Wheeler in the Supreme Court of Victoria on 4 June 1996 whereby it was adjudged by consent that: The Defendant pay the Plaintiff the sum of $1,102,411.00 plus costs agreed at $3000.00.