Re Vincent, Clifton George Ex Parte State Bank of New South Wales Ltd [1996] FCA 795

Re Vincent, Clifton George Ex Parte State Bank of New South Wales Ltd [1996] FCA 795

The failure to complete the third stipulated mode of substituted service did not invalidate the proceedings because the petitioning creditor substantially complied with the substituted service order, the bankruptcy notice probably came to the debtor's attention within the period contemplated by the registrar's order, and no substantial injustice was shown. The defect was treated as a formal defect under s306 of the Bankruptcy Act 1966, so the act of bankruptcy was proved and a sequestration order should be made.

Jurisdiction
Australia
Judgment Date
27 November 1996
Procedural Posture
Creditor's Petition in Bankruptcy Founded on Alleged Failure to Comply With a Bankruptcy Notice / Hearing of Creditor's Petition and Application for Sequestration Order
Outcome
Sequestration order made against the estate of the debtor; costs including reserved costs to be taxed and paid in accordance with the Bankruptcy Act 1966.
Legal Topics
['substituted Service of Bankruptcy Notice' 'formal Defect or Irregularity' 'retrospective Variation of Service Order' 'act of Bankruptcy' 'sequestration Order']
['bankruptcy'] ['substituted Service of Bankruptcy Notice' 'formal Defect or Irregularity' 'retrospective Variation of Service Order' 'act of Bankruptcy' 'sequestration Order']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Creditor's Petition in Bankruptcy Founded on Alleged Failure to Comply With a Bankruptcy Notice / Hearing of Creditor's Petition and Application for Sequestration Order

Legal Issues

  1. 1 ['Whether the bankruptcy notice was validly served where an order for substituted service required three modes of service but only two were completed by the stipulated date.' 'Whether failure to comply with one limb of an order for substituted service was a formal defect or irregularity capable of being cured under s306 of the Bankruptcy Act 1966.' 'Whether the Court could vary an order for substituted service after the date by which service was required or after the date on which the bankruptcy notice was deemed served.']

Ratio Decidendi

The failure to complete the third stipulated mode of substituted service did not invalidate the proceedings because the petitioning creditor substantially complied with the substituted service order, the bankruptcy notice probably came to the debtor's attention within the period contemplated by the registrar's order, and no substantial injustice was shown. The defect was treated as a formal defect under s306 of the Bankruptcy Act 1966, so the act of bankruptcy was proved and a sequestration order should be made.

Court Disposition

Sequestration order made against the estate of the debtor; costs including reserved costs to be taxed and paid in accordance with the Bankruptcy Act 1966.

Orders

  • ['A sequestration order be made against the estate of the debtor.' 'Costs including reserved costs be taxed and paid in accordance with the Bankruptcy Act 1966.' 'A draft of this order be delivered to the Registrar within seven (7) days in accordance with r21(2) of the Bankruptcy Rules.']