Garvin v Patterson [2001] FCA 1253

FEDERAL COURT OF AUSTRALIA

Garvin v Patterson [2001] FCA 1253

BANKRUPTCY – application to set aside bankruptcy notice – where debtor claimed to have a counter-claim set off against or cross-demand equal to or exceeding sum specified in the notice – where mistake in notice – where mistake involved reference to year of statue – where provision under which interest being claimed not stated in notice – where statute referred to but particular provision not referred to – whether irregular bankruptcy notice invalid – ordinary and commonsense approach to construction of bankruptcy notice.

Bankruptcy Act 1966 (Cth) Supreme Court Act 1995 (Qld)

Wright v Australian & New Zealand Banking Group Limited [2001] FCA 386 followed

FRANK JAMES GARVIN v NORMAN JOHN PATTERSON & RUTH JESS PATTERSON NO. N 7283 OF 2001 BEAUMONT J 21 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7283 OF 2001

BETWEEN: FRANK JAMES GARVIN

APPLICANT

AND: NORMAN JOHN PATTERSON AND RUTH JESS PATTERSON

RESPONDENTS

JUDGE: BEAUMONT J

DATE OF ORDER: 21 AUGUST 2001

WHERE MADE: SYDNEY

UPON NOTING that the judgment debtor undertakes to the Court (1) that he will forthwith hand to the judgment creditors a direction addressed to the mortgagees of the property, 4 Molloy Avenue, South Coogee, being Lot 15 in deposited plan 247151, directing the mortgagees to pay the sum of $42,610.80 to the judgment creditors out of the judgment debtor's entitlement to the net proceeds of sale of that property scheduled for completion on 29 August 2001; and (2) that he will not revoke that direction – The Court orders: 1. Time for compliance with the bankruptcy notice be extended up to and including 29 August 2001. 2. Judgment debtor to pay the judgement creditors' costs of the present application.