REASONS FOR JUDGMENT

In this matter the petitioning creditor seeks to proceed.  The debtor seeks an adjournment  because he has an application for special leave pending in the High Court.  I do not need to decide whether he should otherwise have received an adjournment, because the solicitor appearing for the judgment creditor has frankly put before me the bankruptcy notice on which she would be relying and it contains what seems to me to be an incurable defect. 

The bankruptcy notice requires the debtor to "secure the payment in" - that appears to be a typing error - "the sum referred to ... to the satisfaction of the Supreme Court of New South Wales or the judgment creditor or compound the sum so specified to the satisfaction of the judgment creditor".  It should have referred to securing to the satisfaction of the Federal Court of Australia, and as the form has been held to be mandatory, it seems to me that the petitioning creditor must fail.  In the notes to s 306 of the Bankruptcy Act 1966 set out in the 5th Edition of McDonald, Henry and Meek’s Australian Bankruptcy Law and Practice at p 566, reference is made to the unreported decision of Beaumont J delivered on 18 October 1983 in Re Williams; Ex parte McCourt and Halliday, where his Honour held that a bankruptcy notice which required a debtor to secure or compound the sum claimed to the satisfaction of a court of petty sessions, instead of the Federal Court of Australia, was incurably bad.

I cannot relevantly distinguish the present bankruptcy notice.  Accordingly, the order of the Court is that the petition of the petitioning creditor be dismissed with costs.

Associate:

Dated:  22 September 1997