CATCHWORDS
BANKRUPTCY - Opposition to Creditor’s Petition - overstatement of interest on the bankruptcy notice - no notice of dispute as to amount - bankruptcy notice not invalidated by reason only of claim in excess of entitlement - whether overstatement of interest misleading - bankruptcy notice set aside.
Bankruptcy Act 1966 (Cth), s41(5); s41(6); s306(1)
James v Federal Commissioner of Taxation (1955) 93 CLR 631
Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71
Olivieri v Stafford (1989) 24 FCR 413
In re A Debtor, 478 of 1908 [1908] 2 KB 684
Re The Bankruptcy Act 1966; Ex parte Commercial Banking Co of Sydney Ltd (1979) 23 ALR 522
Re George, Ex parte Tricontinental Corporation Ltd (1994) 126 ALR 541
Re Walsh (1982) 65 FLR 87
Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494
Re Wong; Ex parte Kitson (1979) 27 ALR 405
PRACTICE AND PROCEDURE - Federal Court Act - judgment debt arising out of Federal Court judgment - interest claimed from publication of reasons - no legal entitlement to interest claimed - interest on judgment debt can only be claimed from entry of judgment.
Federal Court of Australia Act 1976 (Cth), s52(1)
RE: IRENE AECKERLE,
EX PARTE: CINCO HOLDINGS PTY LIMITED
No NP 1349 of 1995
FINN J
CANBERRA
1 NOVEMBER 1996
IN THE FEDERAL COURT OF BANKRUPTCY )
)
GENERAL DIVISION )
)No NP 1349 of 1995
BANKRUPTCY DISTRICT OF )
)
NEW SOUTH WALES )
RE: IRENE AECKERLE
EX PARTE: CINCO HOLDINGS PTY LIMITED
COURT: FINN J
PLACE: SYDNEY
DATE:1 NOVEMBER 1996
MINUTES OF ORDERS
THE COURT ORDERS THAT:
1. the petition be dismissed; and
2. the petitioning creditor pay one-third of the debtor’s costs of the petition.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF BANKRUPTCY )
)
GENERAL DIVISION )
)No NP 1349 of 1995
BANKRUPTCY DISTRICT OF )
)
NEW SOUTH WALES )
RE: IRENE AECKERLE
EX PARTE: CINCO HOLDINGS PTY LIMITED
COURT: FINN J
PLACE: SYDNEY
DATE:1 NOVEMBER 1996
REASONS FOR JUDGMENT
Cinco Holdings Pty Limited (“the creditor”) petitions for a sequestration order against Irene Aeckerle (“the debtor”), the act of bankruptcy relied upon being failure to comply with the requirements of a bankruptcy notice alleged to have been served on 31 January 1995. The bankruptcy notice was founded upon a final judgment entered on 12 December 1994 in consequence of orders apparently made by Whitlam J on 6 October 1994 following a five day contested hearing. The creditor’s judgment, I am informed, was on a guarantee given by the debtor under a deed of equitable charge made on 30 July 1991.
The debtor has raised four grounds of opposition to the amended petition now relied upon by the creditor. Put shortly, these are that:
(i) the bankruptcy notice is invalid because the amount specified in it as due to the creditor exceeds the amount for which the creditor is entitled to issue execution;
(ii)personal service of the bankruptcy notice was not effected on the debtor;
(iii)the bankruptcy notice is a nullity as it refers erroneously to a final judgment obtained on 6 October 1994 (this being the date on which Whitlam J delivered his reasons for judgment but not the day on which judgment was entered); and
(iv)despite the judgment of Whitlam J, the debtor was not in fact indebted to the creditor and such would be apparent if that judgment was gone behind.
Though there is substance only in the first of these grounds, it will be necessary to consider each in turn. It is not disputed that, if all grounds fail, a sequestration order should be made.
Ground of Opposition (i): An Excessive Amount Claimed
So far as presently relevant, the bankruptcy notice provides that the creditor:
“has claimed that the sum of $2,140,955.77 together with interest on the amount outstanding from time to time on the judgment debt which at the 14th day of December, 1994 amounts to $41,880.52 and is calculated as follows:
Interest on $2,140,955.77 at 10.5% per annum from 7 October, 1994 to 14 December, 1994 being 68 days @ $615.89 per day.
$41,880.52
Total interest $41,880.52
making a total of $2,182,836.29 due by you to it under a final judgment obtained by it against you in the Federal Court at Sydney on the 6th day of October, 1994, being a judgment the execution of which has not been stayed.”
While the amount of the judgment debt is correctly stated in the notice, it is conceded by the creditor that the amount of interest claimed is erroneous and in two respects: first, it was claimed from the day after Whitlam J’s reasons for judgment of 6 October 1994 whereas under the Federal Court of Australia Act 1976 (Cth), s52(1), interest only was payable “from the date as of which the judgment was entered”, this being 12 December 1994; and secondly, the rate charged was 0.5% per cent per annum above that prescribed at the relevant time by O35 r8 of the Federal Court Rules. There was, in other words, no lawful justification for almost all of the more than $40,000 interest claimed.
Before considering the effect this now agreed error has on the validity of the bankruptcy notice, it is appropriate to mention that on 1 September 1995 the debtor applied to this Court for extensions of time under the Bankruptcy Act 1966, s41(6B) and s33(1)(c) to dispute (inter alia) the amount claimed in the bankruptcy notice and hence the notice’s validity. That application was dismissed by consent on 8 February 1996. I am informed that the reason the parties consented to that application being dealt with in this way was so as to allow the debtor to raise as well the inconsistent allegation that there was not personal service of the bankruptcy notice.
I should emphasise that, though I raised the issue, the creditor disclaimed any reliance upon the dismissal of the application as giving rise to any estoppel, Anshun or otherwise - see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 - although an attempt was made, but later abandoned, to found an estoppel by conduct on the debtor’s filing of that application.
Argument before me on the validity of the bankruptcy notice has focussed in some degree on the provisions of s41 and s306(1) of the Bankruptcy Act. Insofar as is presently relevant s41 provides:
“(5)A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he disputes the validity of the notice on the ground of the misstatement.”
“(6)Where the amount specified in a bankruptcy notice exceeds the amount in fact due and the debtor does not give notice to the creditor in accordance with subsection (5), he shall be deemed to have complied with the notice if, within the time allowed for payment, he takes such action as would have constituted compliance with the notice if the amount due had been correctly specified in it.”
Section 306(1) for its part provides:
“Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that court.”
Again as I have noted, no s41(5) notice was given disputing the bankruptcy notice, although counsel for both parties seem to have assumed that, if it had, the bankruptcy notice would have been invalidated - irrespective, I would add, of the varying judicial views as to the effect of serving a s41(5) notice: on which see AR Keay, “Resisting Bankruptcy Notices”, (1991) 19 Aust Bus L Rev 429 at 438-445. In these circumstances, while both parties accept that an excessive claim in a bankruptcy notice does not of itself invalidate the notice, they divide on the question whether or not the present bankruptcy notice is nonetheless invalid.
As I understood the debtor’s case, it was the manner in which the monetary claim was made either of itself or in combination with the misstatement as to the date of judgment (Ground of Opposition (iii)), that rendered the bankruptcy notice one capable of misleading the debtor. The notice was, in consequence, a nullity, this not being an “irregularity within the meaning of s306”: Re Wong; Ex parte Kitson (1979) 27 ALR 405 at 410. Reliance also was placed on the judgment of Deane J in Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 82.
The creditor’s submission in contrast was that there was no uncertainty as to what was required on the part of the debtor to comply with the bankruptcy notice so that the notice could not be said to be misleading. Reliance was placed on the joint majority judgment in the Kleinwort Benson case.
The issue here is not free from difficulty. The Full Court of this Court has held in Re George, Ex parte Tricontinental Corporation Ltd (1994) 126 ALR 541 at 542 that if interest is included in a claim under a bankruptcy notice - and there is no requirement that it be included: see Re The Bankruptcy Act 1966; Ex parte Commercial Banking Co of Sydney Ltd (1979) 23 ALR 522 at 526 - it must be calculated and stated accurately or else it will be invalid unless the misstatement can be (i) cured by s306(1); or (ii) saved by the provisions of s41(5) and (6).
However, when one comes to apply s41(5), the proposition endorsed in Re George - it derives from the dissenting judgment of Deane J in the Kleinwort Benson case - would seem to be inverted by the terms of the sub-section in circumstances where no notice of overstatement is served on the creditor. As the subsection says, absent the specified notice, the bankruptcy notice is not invalidated ‘by reason only’ that the sum specified in the notice as the amount due exceeds the amount in fact due.
In the present case the bankruptcy notice
is not invalidated by reason only that an excessive amount has been claimed by
way of interest. To this extent the
subsection would appear to give some licence for error in the
calculation and statement of the interest claimed. What, though, is problematic is the nature of
that licence given.
If one begins with the premise that, s41(5) apart, a claim for payment of money not in fact due would constitute a substantial and not formal defect in a bankruptcy notice - and there is considerable authority to this effect: see eg In re A Debtor, 478 of 1908 [1908] 2 KB 684 - then the burden of the ‘by reason only’ formula of s41(5) could properly be said to be to admit the possibility that an excessive claim could give rise to no more than a formal defect and hence be capable of cure under s306(1).
As Lockhart J indicated in Re Walsh (1982) 65 FLR 87 at 91-92 such was the apparent purpose of the English precursors of s41(5) and (6).
“These subsections [ie s41(5) and (6)] are taken from s.53 of the Bankruptcy Act 1924 which in turn was reproduced from the English Bankruptcy Act, 1914 and its predecessor the Bankruptcy and Deeds of Arrangement Act, 1913. It has been said that these provisions were enacted to overcome the judgment in Re A Debtor, 478 of 1908. Plainly enough, as long ago as 1913 the predecessors of s41 (5) and (6) were intended to ensure that, when courts would otherwise hold bankruptcy notices invalid on the ground of overstatement of the amount due, the consequence of invalidity was not to follow unless the debtor gave the requisite notice under s.41(5) or its then equivalent.
They are ameliorating provisions. They do not either in terms or in substance themselves invalidate anything. They save some bankruptcy notices from what otherwise would be invalidity, but the subsections are not based on an assumption that overstatement necessarily leads in every case to invalidity of the bankruptcy notice. It does where, but only where, the debtor could be reasonably misled by the overstatement.”
See also Gummow J’s endorsement of this discussion of the subsections in Olivieri v Stafford (1989) 24 FCR 413 at 428. I should add that the reference to the debtor being “reasonably misled by the overstatement” in the last sentence of the quotation is, as Lockhart J earlier indicated in Re Walsh (at 90), a reference to the type of defect that would invalidate a bankruptcy notice, s306(1) notwithstanding.
This particular analysis of the effect of s41(5) is one with which I respectfully agree. It needs, though, to be recognised that it probably provides only narrow scope for the validation of bankruptcy notices where the excess amount claimed is referable to interest on the judgment and not the judgment debt itself. The reason for this is that, absent a knowledge of the basis on which interest is payable on a judgment debt, a debtor is more likely reasonably to assume the accuracy of the interest claim and to be misled by it if it is erroneous in a significant respect.
Turning to the nature of the overstatement in the present case, it can, in my view, only be characterised as a substantial defect incapable of cure by s306(1). Almost the entirety of the interest claimed lacked any lawful justification under the Federal Court of Australia Act 1976, s52(1) given the period for which it was claimed. Furthermore the interest rate charged was not that authorised by the then O35 r8 of the Federal Court Rules. The claim made is clear, unequivocal and wrong. But, in my view, far from excusing the defect, the form of the claim compounds the defect. It asserts a right in the creditor to, and an obligation in the debtor to pay, interest for a period and at a rate which a debtor could reasonably assume to be accurate given the accuracy of the statement of the judgment debt itself and that the bankruptcy notice was apparently prepared by a solicitor.
The test whether a bankruptcy notice could reasonably mislead is an objective one: see eg Re Wimborne; Ex parte the Debtor (1979) 24 ALR 494. It being unreasonable to expect a lay debtor such as Mrs Aeckerle to have such knowledge of the Federal Court of Australia Act and the Federal Court Rules as would suggest or reveal the falsity of the claim made, I am prepared to find that the bankruptcy notice here, in its interest claim, could mislead the debtor. I do not have to inquire whether she was in fact misled: see James v Federal Commissioner of Taxation (1955) 93 CLR 631 at 644. The bankruptcy notice in consequence, suffers a substantial defect and is incapable of cure by s306(1).
This conclusion is sufficient to dispose of this matter. It necessitates dismissal of the creditor’s petition. Nonetheless I will consider briefly the other grounds of objection raised by the debtor.
Ground of Objection (ii): Lack of Personal Service
I should preface my observations on this by noting that the amended petition before me was the subject of an abortive two day hearing in this Court earlier this year.
I have been presented with two contradictory versions of how service of the bankruptcy notice was effected on the debtor. It is the creditor’s case that the notice was served personally on the debtor (as required by the Bankruptcy Rules, r15) at her residence on the late afternoon of Tuesday 31 January 1995, the service being effected by a Mr Beecham, a licensed commercial sub-agent engaged for the purpose.
Mr Beecham’s evidence was that he went to the debtor’s house on Tuesday 31 January. On the first occasion she did not appear to be present although Mr Beecham said he only sought entrance at the front door of the house. On the second, Mrs Aeckerle is said to have identified herself to Mr Beecham and to have said words to the effect that:
“I have a defence in this matter which is in the Federal Court in Sydney on the 22nd February.”
I would interpolate that an appeal had been lodged against the judgment of Whitlam J and, apparently, had been listed for hearing on the day mentioned above.
Mr Beecham prepared a document on what he says was and I find to have been - the day of service which recorded what the debtor is claimed to have said to him. On the evening of 31 January an affidavit of service was prepared for, and signed by Mr Beecham which recorded her self-identification when service was effected, but not the comment as to the appeal from the judgment. The same night Mr Beecham’s employer wrote to the solicitors for the petitioning creditor in terms (omitting formal parts):
“REPORT: As advised to your office we called as a matter of urgency to the above address on the 22nd December 1994, only to find no one here and apparently they may have been away for the Christmas break.
We continued our calls and on each occasion were only able to speak with male stating that Irene Aeckerle was away.
Finally on the 31st January 1995, service of the Bankruptcy Notice was effected personally on Irene Aeckerle.
At the time of service she stated, ‘Yes that is me’.
She then indicated that she had a defence in this matter which was in the Federal Sydney Court on the 22nd February 1995.
We enclose herein Affidavit of Service and thank you for your instructions.”
In cross-examination Mr Beecham’s answers to questioning directed to the number of times he attended at the debtor’s house, his usual practice when attending for service, and as to the time spent effecting service of documents on the day in question were in some respects inconsistent with answers given at the earlier abortive hearing to which I have referred. It was also put in submission, though not put directly to the witness, that the handwritten record of service was a later fabrication. But when confronted with the report set out above which was made on the same day as the handwritten record of service, counsel for the debtor accepted there was in fact corroboration of the date on which Mr Beecham said he prepared the record.
The debtor’s account of how the bankruptcy notice came to her attention was vastly different. It was that during January of 1995 she was looking after a friend’s mother’s house for several days each week during renovations. On probably a Wednesday in late January she received a telephone call at that house from a tenant (a Mr Farrell) who lived at her own home who allegedly told her that he found documents on the floor in the hallway. These are said to have been the bankruptcy notice.
No-one was called to give evidence that the debtor was residing at the friend’s mother’s house on the day when Mr Beecham said service was effected. While Mr Farrell prepared an affidavit for these proceedings I refused to allow it to be read as he was unavailable for cross-examination. I ruled on this matter at the time and need not repeat my reasons here other than to say that with credibility being a vital issue, to have allowed this evidence in would have been quite unfair to the creditor.
Documentary evidence from the files of the debtor’s solicitors was tendered by the debtor. A file note of an interview with the debtor of 8 March 1995 records that:
“Bankruptcy notice served approximately not later than end January.”
Of the contending versions of the service I find Mr Beecham’s to be the more credible. It has not, for example, been suggested that he learned of the Federal Court appeal otherwise than from the debtor. I find him to be a truthful witness notwithstanding that there are some inconsistencies between his evidence before me and in the earlier proceedings. In contrast, I am unable to accept Mrs Aeckerle’s account of how the bankruptcy notice came to her attention. I am not satisfied that she is a reliable witness. While I do not make a finding of deliberate untruthfulness, I do consider that her evidence in this, as in other matters, reflected an unpreparedness to acknowledge the happening of events which were adverse to her interests. Those other matters to which I refer are, first, her apparent denial that any judgment had been given against her and, secondly, that an appeal had been instituted against Whitlam J’s judgment and had been discontinued.
I find that the bankruptcy notice was served personally on the debtor on 31 January 1995. I reject this ground of objection to the petition.
Ground of Objection (iii): The Date of Judgment
The objection here is that the bankruptcy notice refers to the date of judgment as being 6 October 1994 (which was the date Whitlam J published his reasons for judgment and apparently made the orders of the Court) and not 12 December 1994 (which was when the judgment was entered).
There is no evidence before me that there were any proceedings between the parties other than those which gave rise to the judgment in this case. Despite Mrs Aeckerle’s denial that any judgment was given against her - a denial which is in the face of what occurred - I am satisfied that the alleged defect in the bankruptcy notice is not such as could reasonably mislead the debtor. It is an irregularity within the meaning of s306(1) and there is no ground for suggesting that substantial injustice has been occasioned by the irregularity: cf Re Wong; Ex parte Kitson, above, at 410.
Ground of Objection (iv): Going Behind the Judgment
There being no doubt as to the jurisdiction of this Court to go behind the judgment relied upon by the petitioning creditor, the sole question here is whether the present circumstances are such as to warrant or oblige the exercise of that jurisdiction. The short answer to that question is that they are not.
The judgment giving rise to the judgment debt was given on a cross-claim made by the creditor to a claim brought by the debtor against it. After a five day hearing at which the parties were legally represented, the debtor’s claim was dismissed and, as I have noted, the cross-claim upheld.
On 27 October 1994 an appeal was lodged in this Court against the decision of Whitlam J. I would note that none of the grounds of appeal related to the matters said to justify going behind the judgment in the present proceedings. That appeal, as I earlier indicated, was discontinued. The evidence suggests that occurred in May 1995.
The cross-claim resulting in the judgment debt was on a guarantee given by the debtor as part of a secured loan agreement between the creditor and another company, Swancan Pty Ltd (“Swancan”). The object of the loan agreement was to enable Swancan to complete its purchase of a hotel/motel business in Bathurst and of the land on which it was situated.
The ground of objection raised against the judgment debt is that, if the judgment is gone behind, no debt will in fact be found due to the petitioning creditor because:
“... the debtor had been wholly released from her
liability under the guarantee because:
(a) the petitioning creditor and the principal debtor, Swancan Pty Limited (Receiver & Manager Appointed), had materially varied the terms of their original agreement so as to discharge the debtor as guarantor; and
(b) the petitioning creditor failed to maintain securities taken for the enforcement of the obligations of the principal debtor so as to discharge the debtor as guarantor.”
The only evidence before me which is said to provide reason for going behind the judgment is a tender bundle of documents to which the creditor takes no objection. I have been provided with no explanation as to why the matters alleged in the ground of opposition were not raised by way of defence in the proceedings before Whitlam J. The explanation given for discontinuing the appeal was that the debtor was advised she had poor prospects of success in it. It is clear that the events relied upon to found the objection occurred prior to the trial before his Honour. I have simply been asked by counsel for the debtor to assume that the debtor and those advising her were unaware of these events at the time. Though Mrs Aeckerle has given evidence in these proceedings, none has been addressed to this matter. No evidence was given by her then legal advisers. In such circumstances I am not prepared to make the assumption, presumably by way of inference, that I have been invited to make.
The circumstances which the debtor alleges had the effect of discharging the guarantee relate to the manner in which the receiver of Swancan (appointed by the creditor) exercised his powers of sale of the property securing the debt guaranteed by the debtor. By a deed of equitable charge the receiver sold the company’s business and the land on which it was situated to a number of companies under a secured vendor-finance arrangement that required the loan of $900,000 to the purchaser companies. The debtor in the present proceedings alleges that the receiver had no power to make such a loan and by so doing in concert with the creditor altered the nature of the principal contract that had been guaranteed by the debtor: see Phillips and O’Donovan, The Modern Contract of Guarantee, The Law Book Company Limited 2nd Ed, 1992, 287.
I was taken by both parties to various provisions in the deed of 30 July 1991 which created both the original secured loan to Swancan and the guarantee of the debtor, for the purpose of ascertaining whether the powers then given to the receiver authorised the vendor-finance arrangement referred to above. While it may well be that intimations of an arguable case can be discerned in the provisions of the deed (given the terms of the powers to which I was referred) and that the debtor, in consequence, may have been able to mount an arguable defence to the cross-claim brought against her, I am by no means satisfied on the argument before me that such a defence was there or would have been successful. If she subsequently sought to challenge the guarantee in new proceedings there would, of course, be a very real question whether she would be estopped on Anshun grounds from so doing.
More importantly, though, I am not satisfied that the debtor, who was legally represented both at the trial and in the preparation of the appeal until its discontinuance, did not have ample opportunity to put this case to Whitlam J: cf Simon v Vincent J O’Gorman Pty Ltd (1979) 41 FLR 95 at 111. Neither am I satisfied that the judgment itself resulted in a miscarriage of justice: see Wren v Mahoney (1972) 126 CLR 212 at 222-223. As Lockart J said in the Simon case, above, at 111:
“The courts are reluctant to exercise this jurisdiction where the judgment was entered after a full investigation of the issues at a trial where both parties appeared and had ample opportunity to put their case to the court.”
In my view reason does not exist here for doubting whether there really was a debt due to the creditor, notwithstanding the contested litigation between the parties. It may well be that particular forensic choices were made in the conduct of that litigation which proved in the event to be unsuccessful. I see no reason on the very limited material the debtor has placed before me, and in the absence of any explanation by her as to why these issues were not ventilated before Whitlam J, which would require me to exercise the jurisdiction to go behind the judgment, I decline to do so.
As I have found the bankruptcy notice to be a nullity, the petition in this case must be dismissed.
On the question of costs the debtor has been successful in one of the challenges made to the bankruptcy notice. She was unsuccessful, notably, on the issue of personal service and on going behind the judgment. In these circumstances the proper order for costs is that the petitioning creditor pay one-third of the debtor’s costs of the petition.
I order that the petition be dismissed and that the petitioning creditor pay one-third of the debtor’s costs of the petition.
I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 31 October 1996
Counsel for petitioning creditor: J Johnson
Solicitors for petitioning creditor:Coleman & Greig
Counsel for respondent: A Ogborne
Solicitors for respondent: McMahon Drake Balding
Dates of hearing: 27,28 March, 30 May, 17,18 October 1996
Date of judgment: 1 November 1996
