Gergely v Hammer [1995] FCA 1200

Gergely v Hammer [1995] FCA 1200

The bankruptcy notice was in common form without ambiguity, no authority supporting the appellant's submissions was provided, and new points sought to be raised on appeal should not be permitted when not raised at trial or in the notice of appeal. Leave to amend the notice of appeal to add new grounds was refused but allowed to enable appointment of a trustee.

Parties
Appellant: Gabor Gergely; First Respondent: Andrew Hammer; Second Respondent: Joseph Hammer; Third Respondent: Jolan Fulop
Jurisdiction
Australia
Judgment Date
28 November 1995
Procedural Posture
Appeal / Judgment After Hearing of Appeal
Outcome
appeal otherwise dismissed, appointment of trustee ordered, costs to respondents
Legal Topics
Bankruptcy Notice Validity, Amendment of Notice of Appeal, Appointment of Trustee
Bankruptcy Practice and Procedure Bankruptcy Notice Validity Amendment of Notice of Appeal Appointment of Trustee

Case Brief

Summary, issues, holding and outcome

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Parties

Gabor Gergely

Appellant

Andrew Hammer

First Respondent

Joseph Hammer

Second Respondent

Jolan Fulop

Third Respondent

Procedural Posture

Appeal / Judgment After Hearing of Appeal

Legal Issues

  1. 1 Whether bankruptcy notice addressed to two joint debtors only one of whom is served is defective
  2. 2 Whether the use of 'you' in a bankruptcy notice directed to joint debtors is ambiguous
  3. 3 Whether leave to amend notice of appeal to raise new issues on appeal should be granted

Ratio Decidendi

The bankruptcy notice was in common form without ambiguity, no authority supporting the appellant's submissions was provided, and new points sought to be raised on appeal should not be permitted when not raised at trial or in the notice of appeal. Leave to amend the notice of appeal to add new grounds was refused but allowed to enable appointment of a trustee.

Court Disposition

appeal otherwise dismissed, appointment of trustee ordered, costs to respondents

Orders

  • Leave to amend the notice of appeal to add proposed grounds 2(c) and 2(d) refused
  • Leave to amend the notice of appeal to seek the appointment of a trustee of the bankrupt estate granted