Unicomb v Cairns [2009] FCA 988

FEDERAL COURT OF AUSTRALIA

Unicomb v Cairns [2009] FCA 988

MICHAEL CHARLES UNICOMB and WARREN DONALD TURNER v SUZANNE CAIRNS

NSD 277 of 2009

PERRAM J

4 SEPTEMBER 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 277 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MICHAEL CHARLES UNICOMB

First Appellant

WARREN DONALD TURNER

Second Appellant

AND: SUZANNE CAIRNS

Respondent

JUDGE: PERRAM J

DATE OF ORDER: 4 SEPTEMBER 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

general division NSD 277 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: MICHAEL CHARLES UNICOMB

First Appellant

WARREN DONALD TURNER

Second Appellant

AND: SUZANNE CAIRNS

Respondent

JUDGE: PERRAM J

DATE: 4 SEPTEMBER 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The question in this case is whether a bankruptcy notice should be set aside. Messrs Unicomb and Turner – who are the appellants in this Court – claim that the notice issued to them is invalid by reason of three defects. The three defects they allege are: (a) the notice is based on a judgment debt for $105,925.86, but, despite that, claims an entitlement to a judgment sum of $102,653.36. Generally, formal defects do not invalidate a bankruptcy notice. Messrs Unicomb and Turner deny the defect is a formal one; (b) the judgment, regardless of the amount claimed, was issued on 9 October 2008. Although the notice claims interest for the period 10 October 2008 to 16 October 2008 (a period of seven days) it does not claim interest for the actual day of the judgment. They claim that interest is due for the day on which a judgment is handed down. It follows, so they submit, that the interest claimed ($196.87) is understated. Again, they contend that that defect is not formal; and (c) if the judgment sum had been paid within 28 days of the date of the judgment, no interest would have been payable because the law gives a discount to those who meet judgments promptly. The notice was issued on 20 October 2008 (that is on the 11th day after the judgment and within the 28 day period). Messrs Unicomb and Turner submit that it was not possible to say that the interest then claimed was due since it remained possible until the expiry of the 28th day after 9 October – that is, 6 November 2008 – that no interest might be due if the judgment sum was paid before that time. Accordingly, the notice claims too much which, so they submit, is a non-formal defect. 2 Messrs Unicomb and Turner applied to the Federal Magistrate's Court to set aside the notice. At that time they put their case only on grounds (a) and (c) set out above. The learned Federal Magistrate rejected both grounds and dismissed the application with costs. They now appeal to this Court raising the same two grounds again. Additionally they raise ground (b) for the first time. No objection was taken to that course by counsel for the respondent, Mrs Cairns. 3 Appeals to this Court from the Federal Magistrate's Court are generally heard by a Full Court. However, the Chief Justice determined pursuant to s 25(1)(A) of the Federal Court of Australia Act 1976 (Cth) that this particular appeal should be heard by a single judge. 4 In my opinion, for reasons which follow, each of the three grounds advanced by Messrs Unicomb and Turner should be rejected and the appeal should be dismissed with costs.