Federal Court of Australia
Federal Court of Australia
Cappello v Homebuilding Pty Ltd (formerly known as Hammond & Simonds NSW Pty Ltd) [2021] FCA 981 File number: NSD 398 of 2021
Judgment of: KATZMANN J
Date of judgment: 18 August 2021
Catchwords: BANKRUPTCY — application to set aside a bankruptcy notice — whether bankruptcy notice defective — where notice founded on judgment debt for which debtors jointly and severally liable, but only one copy of notice left at their premises and notice refers to creditor by its former name and gives its lawyers' address rather than its own, whether bankruptcy notice capable of misleading debtors — where bankruptcy notice not in the form prescribed by the Bankruptcy Regulations 2021 (Cth) but the Bankruptcy Regulations 1996 (Cth), whether bankruptcy notice capable of misleading debtors — whether debtors have a counter-claim, set-off or cross-demand within s 40(1)(g) of Bankruptcy Act 1966 (Cth)
Legislation: Acts Interpretation Act 1901 (Cth) s 23(b) Bankruptcy Act 1966 (Cth) ss 40(1)(g), 41, 306 Bankruptcy Regulations 2021 (Cth) regs 9, 10 Coronavirus Economic Response Package Omnibus Act 2020 (Cth) Corporations and Bankruptcy Legislation Amended (Extending Temporary Relief for Financially Distressed Businesses and Individuals) Regulations 2020 (Cth), Sch 1; cll 1 and 2 Uniform Civil Procedure Rules 2005 (NSW) r 14.14
Cases cited: Cappello v Hammond & Simonds NSW Pty Ltd (No2) [2020] NSWSC 1199 Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021 Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 James v Federal Commissioner of Taxation (1955) 93 CLR 631 Nadinic v Drinkwater [2017] NSWCA 114 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Re Crisafulli; Ex parte National Commercial Banking Corporation of Australia Ltd (1985) 11 FCR 272 Re Florance; Ex parte Turimetta Properties Pty Ltd (1979) 28 ALR 403 Re Hansen; Ex parte Hansen (1995) 4 FCR 590 Re Howes; Ex parte Hughes [1892] 2 QB 628 Re Pugliese; Ex parte The Chase Manhattan Bank of Australia Ltd (1993) 44 FCR 536 Re Wimborne; Ex parte The Debtor (1979) 24 ALR 494 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
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