Re Maher, Denis Ex Parte Official Trustee in Bankruptcy [1995] FCA 972

Re Maher, Denis Ex Parte Official Trustee in Bankruptcy [1995] FCA 972

The bankruptcy notice was invalid because it identified Young R's order of 21 February 1995 but did not specify Olney J's order of 3 November 1993, which was the true source of the judgment debtor's liability to pay the taxed costs. Following Gardiner v Gardiner, that omission was fatal and not curable as a formal defect.

Jurisdiction
Australia
Judgment Date
03 May 1995
Procedural Posture
Bankruptcy Application to Set Aside a Bankruptcy Notice / Application Heard and Determined on 3 May 1995
Outcome
Bankruptcy notice set aside; respondent ordered to pay the applicant's costs of the motion.
Legal Topics
['bankruptcy Notice' 'final Judgment or Final Order' 'costs Order' 'certificate of Taxation' 'defective Bankruptcy Notice']
['bankruptcy Law' 'civil Procedure'] ['bankruptcy Notice' 'final Judgment or Final Order' 'costs Order' 'certificate of Taxation' 'defective Bankruptcy Notice']

Case Brief

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Procedural Posture

Bankruptcy Application to Set Aside a Bankruptcy Notice / Application Heard and Determined on 3 May 1995

Legal Issues

  1. 1 ['Whether the bankruptcy notice was defective because it was not based on or did not refer to a final order within the meaning of s 40(1)(g) of the Bankruptcy Act.' "Whether the bankruptcy notice was invalid because it referred to the order of Young R dated 21 February 1995 rather than the order of Olney J dated 3 November 1993 as the source of the debtor's liability."]

Ratio Decidendi

The bankruptcy notice was invalid because it identified Young R's order of 21 February 1995 but did not specify Olney J's order of 3 November 1993, which was the true source of the judgment debtor's liability to pay the taxed costs. Following Gardiner v Gardiner, that omission was fatal and not curable as a formal defect.

Court Disposition

Bankruptcy notice set aside; respondent ordered to pay the applicant's costs of the motion.

Orders

  • ['That the bankruptcy notice be set aside.' "That the respondent pay the applicant's costs of and incidental to the motion on notice dated 19 April 1995, such costs be taxed in default of agreement."]