Re Aeckerle, Irene Ex Parte Cinco Holdings Pty Ltd [1996] FCA 933

Re Aeckerle, Irene Ex Parte Cinco Holdings Pty Ltd [1996] FCA 933

The bankruptcy notice was invalid for a substantial defect due to the excessive and misleading claim for interest; a lay debtor could reasonably be misled, and the defect was incapable of cure under s306(1) of the Bankruptcy Act.

Parties
Creditor: Cinco Holdings Pty Limited; Debtor: Irene Aeckerle
Jurisdiction
Australia
Judgment Date
01 November 1996
Procedural Posture
Bankruptcy Petition / Final Judgment
Outcome
petition dismissed
Legal Topics
Creditor's Petition, Bankruptcy Notice, Interest Calculation, Personal Service, Go Behind Judgment
Bankruptcy Practice and Procedure Creditor's Petition Bankruptcy Notice Interest Calculation Personal Service Go Behind Judgment

Case Brief

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Parties

Cinco Holdings Pty Limited

Creditor

Irene Aeckerle

Debtor

Procedural Posture

Bankruptcy Petition / Final Judgment

Legal Issues

  1. 1 Whether the bankruptcy notice was invalid due to an overstatement of interest
  2. 2 Whether personal service of the bankruptcy notice was effected
  3. 3 Whether an erroneous reference to the date of judgment invalidated the notice

Ratio Decidendi

The bankruptcy notice was invalid for a substantial defect due to the excessive and misleading claim for interest; a lay debtor could reasonably be misled, and the defect was incapable of cure under s306(1) of the Bankruptcy Act.

Court Disposition

petition dismissed

Orders

  • the petition be dismissed
  • petitioning creditor pay one-third of debtor's costs of the petition