Re Francis, Michael Alan Ex Parte Gartrell, Harold Borrodell [1983] FCA 162

Re Francis, Michael Alan Ex Parte Gartrell, Harold Borrodell [1983] FCA 162

The bankruptcy notice was fundamentally defective as it specified payment to be made to the registrar at Orange, rather than Dubbo, the proper place as required by the judgment and the District Court Act; the defect went beyond a mere formality and could reasonably mislead the debtor, rendering the notice invalid and incapable of founding an act of bankruptcy.

Parties
Debtor/applicant: Michael Alan Francis; Creditor/respondent: Harold Borrodell Gartrell
Jurisdiction
Australia
Judgment Date
01 July 1983
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice
Outcome
Application granted; bankruptcy notice set aside.
Legal Topics
Bankruptcy Notice Validity, Enforcement of Judgments, Stay of Judgment Enforcement, Defective Notice, District Court Procedure
Bankruptcy Bankruptcy Notice Validity Enforcement of Judgments Stay of Judgment Enforcement Defective Notice District Court Procedure

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Parties

Michael Alan Francis

Debtor/applicant

Harold Borrodell Gartrell

Creditor/respondent

Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 Whether the execution of District Court judgment was stayed by failure of the Registrar to consider debtor's application for an instalment order 'forthwith'.
  2. 2 Whether a bankruptcy notice stating the incorrect place for payment is fundamentally defective.

Ratio Decidendi

The bankruptcy notice was fundamentally defective as it specified payment to be made to the registrar at Orange, rather than Dubbo, the proper place as required by the judgment and the District Court Act; the defect went beyond a mere formality and could reasonably mislead the debtor, rendering the notice invalid and incapable of founding an act of bankruptcy.

Court Disposition

Application granted; bankruptcy notice set aside.

Orders

  • Bankruptcy Notice 1925 of 1983 set aside.
  • Creditor to pay one half of the debtor's costs, including reserved costs and the costs of 28 June 1983 when the hearing commenced.