Bendigo Bank Ltd v Williams [1999] FCA 1546

FEDERAL COURT OF AUSTRALIA

Bendigo Bank Ltd v Williams [1999] FCA 1546 BANKRUPTCY – bankruptcy notice - omission of provision under which interest claimed –defect or irregularity – substantive or formal defect Bankruptcy Act 1966 (Cth) ss41, 43, 306(1)

Bankruptcy Regulations reg 4.02

Bendigo Bank Limited v Scerri [1999] FCA 1215 followed Ashdown v Kirk [1999] FCA 1263 not followed Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 distinguished

BENDIGO BANK LIMITED v GARY JOHN WILLIAMS VG 7562 of 1999 GOLDBERG J 12 NOVEMBER 1999 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7562 of 1999

BETWEEN: BENDIGO BANK LIMITED

Applicant

AND: GARY JOHN WILLIAMS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 12 NOVEMBER 1999

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The petition dated 20 August 1999 and filed on 25 August 1999 is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 7562 of 1999

BETWEEN: BENDIGO BANK LIMITED

Applicant

AND: GARY JOHN WILLIAMS

Respondent

JUDGE: GOLDBERG J

DATE: 12 NOVEMBER 1999

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 On 25 August 1999 Bendigo Bank Limited ("the applicant") filed a Creditor's Petition seeking a Sequestration Order under s 43 of the Bankruptcy Act 1966 (Cth) ("the Act") against the estate of the respondent Gary John Williams. The act of bankruptcy relied upon in the Petition is the failure of the respondent to comply with a bankruptcy notice dated 9 April 1999 which was founded on a Judgment obtained in the Melbourne Magistrates' Court at Melbourne on 11 February 1999. 2 The Petition, which is not opposed, was returnable before a Registrar of the Court. The Registrar referred the Petition to a Judge because of the decisions in Bendigo Bank Limited v Scerri [1999] FCA 1215 and Ashdown v Kirk [1999] FCA 1263. 3 The issue for determination is whether the omission in a bankruptcy notice of the provision under which interest is claimed vitiates the notice or is a formal defect or irregularity for the purposes of s 306(1) of the Act. 4 The bankruptcy notice is in the form prescribed by reg 4.02 of the Bankruptcy Regulations. It states that the Petitioner claims the debtor owes a debt of $5,474.23 "as shown in the Schedule". The notice requires the debtor within twenty-one days after service of the bankruptcy notice to pay to the creditor the amount of the debt or to make an arrangement to the creditor's satisfaction for settlement of the debt. 5 The Schedule to the notice is in the following form: "Schedule 1. Amount of judgement or order $4927.88 2. Legal costs if ordered to be paid and a specific amount was not included in the judgment or order (see Note 1, below) $ 3. If claimed in this Bankruptcy Notice, interest accrued since the date of Judgment or order (see Note 3, below) $ $546.35 4. Subtotal $5474.23 5. Payments made since date of judgment order $0.00 6. TOTAL DEBT OWING $5474.23