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Robertson Homes (Qld) Pty Ltd v Twivey [2011] FMCA 69 (10 February 2011)
Last Updated: 20 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
ROBERTSON HOMES (QLD) PTY
LTD v TWIVEY
|
[2011] FMCA 69
|
BANKRUPTCY – Bankruptcy notice –
extension of time – adjournment – abridgment – amendment of
process
– validity – overstatement of amount. |
|
|
ROBERTSON HOMES (QLD) PTY LTD (ACN 070 034 874)
|
|
Hearing date:
|
15 December 2010
|
|
Delivered on:
|
10 February 2011
|
REPRESENTATION
Counsel for the
Applicant: |
Mr Frigo
|
Solicitors for the Applicant: |
Woods Hatcher
|
Counsel for the Respondent: |
Mr Wilson
|
Solicitors for the Respondent: |
Dillon Legal
|
ORDERS
(1) Application dismissed.
(2) That subject to any other application being made within seven days of the
date of this order, the applicant pay the respondent’s
costs of and
incidental to the application to be assessed on the standard
basis.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
BRISBANE
|
BRG 953 of
2010
ROBERTSON HOMES (QLD) PTY LTD (ACN 070
034 874)
|
Applicant
And
Respondent
REASONS FOR JUDGMENT
Introduction
- The
applicant debtor Robert John Twivey seeks orders pursuant to
“s.33(1)(c) under the Bankruptcy Act extending the time allowed for
payment of the sums specified in BN QN 237/2010 so as to allow the [debtor] to
give notice to the
[creditor] under s.41(5) of said Act that he disputes the
validity of the notice on the grounds that the sum specified in the notice as
the amount due to
the creditor exceeds the amount in fact due”.
- The
debtor seeks orders that:
- The
bankruptcy notice is invalid because of an overstatement and should be set
aside; alternatively
- The
time for giving notice pursuant to s.41(5) should be extended in which event the
bankruptcy notice ought be set aside.
Background facts
- On
16 December 2009 the creditor obtained judgment in the Magistrates Court
Queensland against the debtor for a sum of $38,750.00.
On 17 December 2009 it
succeeded in obtaining a further judgment against the debtor in the sum of
$52,316.00 in the District Court
Queensland. Each judgment arose following
separate orders made by the Queensland Commercial and Administrative Tribunal
(QCAT) in
separate proceedings before that Tribunal involving both parties.
Those judgments were relied upon by the creditor for the issue
of the bankruptcy
notice and in turn the creditor’s application for sequestration.
- The
proceedings before QCAT and each of the Tribunals’ decisions now manifest
by judgments concerned not only the debtor, but
also his son, Peter Alfred
Twivey as co-debtor (the co-debtor). A bankruptcy notice was also issued in
respect of Peter Twivey but
has not been further actioned for reasons which
follow.
- At
about the same time as proceedings were on foot in QCAT between these parties
there were also proceedings on foot in the District
Court Queensland at
Beenleigh where the creditor claimed against the debtor and co-debtor for
$158,480.60 being damages for breach
of contract.
- From
the reasons in the QCAT proceedings it appears the parties were in dispute
concerning building works on the property at 9 Limewood
Crescent Ormeau Hills
and in respect of building works on a property at Lot 382 Island View Terrace,
Ormeau Hills. From the QCAT
header it appears those proceedings commenced some
time in 2008.
- The
District Court proceedings between the parties commenced in 2008. In those
proceedings the creditor claimed for money due and
owing by the debtor and the
co-debtor in respect of a “joint venture agreement for the purpose of
building a residence on land
... situated at 9 Limewood Crescent Ormeau
Hills”. Those proceedings remain unresolved as between the creditor and
the debtor.
- At
its highest the debtor is indebted to the creditor in the sum of $249,546.80
made up of the judgment for $38,750.00 directed to
be paid by the debtor and the
co-debtor to the creditor in respect of the rectification works for the
incomplete and defective works
on the 9 Limewood Crescent residence and
$158,480.60 in respect of outstanding money due by the debtor and the co-debtor
for the
initial unpaid construction costs of the 9 Limewood Crescent residence.
The balance of $52,316.00 is attributable to the other judgment
in respect of
the Island View Terrace property.
- In
the meantime the co-debtor fell out with the debtor and ultimately entered into
an agreement with the creditor in full discharge
of his indebtedness in respect
of the judgments registered following the QCAT proceedings and in settlement of
the claim in the District
Court proceedings. In summary by deed of settlement
dated July 2010 the co-debtor agreed to pay the creditor a sum of $100,000.00
to
settle his liability in respect of those judgments and the claim. The sum was
payable by instalments with the first instalment
being in the sum of $30,000.00
payable on or before 21 June 2010. In the deed of settlement the creditor
acknowledged payment by
the co-debtor of the sum of $30,000.00 and its receipt
of that sum.
- Significantly
the debtor had no knowledge until about 4 October 2010 that the co-debtor had
engaged in negotiations with the creditor
and had entered into the deed of
settlement and paid a sum of $30,000.00 pursuant to the deed.
- The
bankruptcy notice relied upon by the creditor was issued on 23 February 2010.
The endorsed sum on the notice was for $92,862.40.
That sum was made up of
$91,066.00 in respect of the two QCAT awards which had been registered as
judgments, and interest. No credit
was noted and allowed for as none was due at
the time of issue. As noted above, between issue and service the co-debtor paid
the
sum of $30,000.00 of which the debtor had no knowledge until recent time.
- It
is for this reason the debtor complains that the bankruptcy notice was
misleading and that he has been materially misled giving
rise to his interim
application.
Overstatement
- The
debtor submitted the bankruptcy notice itself was invalid for two
reasons:
- The
bankruptcy notice itself overstated the sum due; and
- The
bankruptcy notice failed to record a payment or credit due.
- The
debtor’s principal submission was that the bankruptcy notice is not valid.
If correct there is no need to consider an application
to extend time for giving
notice pursuant to s.41(5). For that reason I propose to deal with the
overstatement first.
- As
I have earlier observed the bankruptcy notice was issued on 23 February 2010.
It was endorsed in respect of a sum claimed of $92,862.40
and no notice was
given to the debtor that between the time of issue and service a co-debtor had
paid a sum of $30,000.00 to the
creditor.
- It
is significant to note that at the time the co-debtor made the $30,000.00
payment to the creditor in part performance of the deed
of settlement the deed
made no reference to the apportionment of that sum or dealt with its application
across the debts and claim.
That is to say it was not discussed or agreed
between the co-debtor and the creditor that the sum of $100,000, of which
$30,000.00
was part, be applied to the discharge of either of the existing
judgments or to the discharge of the contingent liability due in
respect of the
District Court proceedings or that there be any other marshalling or pro-rating
in respect of the judgment debts or
discharge of the contingent liability. This
was the position when the bankruptcy notice was served upon the debtor on 26
July 2010.
- The
debtor contended that the bankruptcy notice served was defective by its omission
to give credit for the $30,000.00 that the creditor
had by then received.
- The
debtor’s counsel conceded during oral submissions that the bankruptcy
notice was valid at the time of issue. However he
contended in his written
outline that the overstatement rendered the notice invalid. That contention was
premised on an argument
that the creditor had not discharged its onus of showing
that it was not required to give the debtor any credit for the payment of
the
$30,000.00. This, it was contended, was analogous with decisions on the rule
against double compensation and the appropriation
of payments in the context of
concurrent and overlapping claims by the creditor against two defendants of
which the debtor was one.
- It
is well settled that a plaintiff who has a claim against two defendants cannot
recover more than his total loss and that he must
give credit for any sum
received from one defendant in or towards satisfaction of the claim whether
received before or after judgment;
Banque Keyser Ullman SA v Skandia (UK)
Insurance Co Ltd & Ors (No.2) [1988] 2 ALL ER 880 at 881;
Somes v Duke Group Ltd [2000] FCA 248 (13 March 2000). The debtor
contended that the creditor had failed in the discharge of its onus to
demonstrate the manner in which
funds were to be appropriated and accordingly
the court cannot know whether in fact the bankruptcy notice constitutes a demand
which
seeks to affect a double recovery of money claimed by it.
- The
difficulty here is compounded because not only are there multiple sources of
liability (two judgments and one claim) but also
the payment made was in
discharge of the indebtedness of the co-debtor in respect of all the
co-debtor’s indebtedness without
any specific allocation. The terms of
the deed of settlement simply discharged the co-debtor from further liability.
Materially
clause 3 of the deed of settlement provided:
- “Provided
the (co-debtor) complies with this deed, the (creditor) unconditionally and
irrevocably releases and discharges the
(co-debtor) from all actions, suits,
claims, demands and causes of action including bankruptcy proceedings commences
by the filing
of bankruptcy notice QN 237/2010 whatsoever at law, in equity and
under statute which the (creditor) may have or which but for this
document
would, could or might at any future time have or have had against the
(co-debtor) in respect of or arising out of either
directly or indirectly any
matter referred to in or arising out of this document”.
- The
recitals to the deed noted the relevant background including the two judgments
and the claim and that the settlement was one made
“without admission of
liability”. In section 2 of the deed dealing with the “Commercial
Settlement Payment” the clause dealt only with the settlement sum and the
manner
of its payment, that is by instalment. There were no other material
provisions in the deed. Whilst the deed of settlement discharged
the co-debtor
from further liability it did not release the debtor from the judgments and
claim made by the creditor. The debtor’s
clear liability for the whole of
the judgments and creditor’s claim less credit for sums paid by the
co-debtor in performance
of his deed of settlement remained.
- Following
the debtor’s argument on the first hearing date the creditor caused its
solicitors to write to the debtor’s
solicitors on 13 January 2011 advising
that the creditor had elected to appropriate the $30,000.00 payment from the
co-debtor to
the contingent debt, namely the debt claimed in the District Court
proceedings. The debtor considered that evidence inutile as the
time to
appropriate the payment had passed and thus it was not open to the creditor to
make such an election.
- The
debtor claimed that because the bankruptcy notice has made no reference to this
payment and its allocation to any particular liability
the bankruptcy notice is
misleading and that he has been misled.
- The
debtor contended the difficulty arose because in principle where a plaintiff who
receives payment from one defendant (D1) establishes
an additional separate
claim against that defendant, the payment is allocated first to that claim (i.e.
the additional separate claim)
and credit is then given in favour of the second
defendant (D2) only for the excess necessarily referable to the overlapping
claim;
see Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd
& Ors (No.2) (supra); Townsend & Anor v Stone Toms &
Partners (a firm) (1984) 27 BLR 26; The Morgengry and Blackcock
[1900] P.1. In Banque Keyser Ullman SA, Steyn J observed at pg 883 that
there is no general equitable principle of pro-rating in this type of case. His
Honour proceeded:
- “The
legal basis of the argument in favour of pro-rating must be examined. The
context in which the question arises is the
quantification of loss, and the rule
that a plaintiff cannot recover more than his actual loss. The credit to be
given by a plaintiff
in favour of one tortfeasor in respect of recovery from
another tortfeasor is to be determined by applying the law to the facts;
it
cannot be a matter for the exercise of a judicial
discretion”.
- However,
as the debtor’s submission proceeds, there is an evidentiary onus cast
upon the creditor of showing there is no excess
in respect of the liability the
subject of the payment by D1 (here the co-debtor) which would constitute an
excess then referable
to the overlapping claim; Townsend & Anor v Stone
Toms & Partners (a firm) (supra) at 41. It is because of this
uncertainty the debtor says he could not know if the part payment made by the
co-debtor was attributable
wholly, partly or not at all to the sums the subject
of the bankruptcy notice and accordingly what he was required to do to answer
the notice.
- In
his judgment Oliver LJ observed:
- “But
granted for the moment that there may appear to be a question of apportionment
of the sum between claims which are good,
claims which are bad, and claims which
are not concurrent, the mere fact that this may not be altogether
straightforward does not,
to my mind, absolve the judge from attempting the
task. It is said that the burden lies on the defendant to show that a part of
the claim against him has already been satisfied, and to demonstrate the extent
to which recovery has already been completed by the
plaintiff; ... Allowing
this, however, it seems to me that that initial burden is discharged when the
defendant shows acceptance
of a payment in, in respect of causes of action where
there are concurrent claims against him. If it is to be said that the payment
relates to some claims which are not concurrent, or which could not succeed
against the defendant, the only person capable of providing
that guidance is the
plaintiff himself, who accepted the payment. That the payment has to be taken
into account in some way seems
to me to be beyond doubt, and it is, of course,
always open to the plaintiff who wishes to accept the payment in or thinks that
its
acceptance may cause him some embarrassment in the matter of apportionment
to request an amendment to the notice of payment in to
apportion the sum paid
among the causes of action in respect of which it is paid. ...
- Where,
however, the party who has to bring the money into account himself provides no
material to show how any apportionment should
be made, ... the judge has to do
the best with what material he has, and the only material that he had in this
case was the claims
themselves...”
- In
the current context his Lordship’s remarks pertain to the creditor as
plaintiff and co-debtor as defendant.
- To
like effect Purchas LJ observed at page 51:
- “The
effects of the acceptance of the payment in satisfaction of all claims between
the plaintiffs and [the co-debtor] defendants
must raise a prima facie
presumption that where those claims overlap claims made against another
defendant, that the latter claims
have also been satisfied. The presumption is
rebuttable by evidence led by the plaintiffs, and there is no bar to their
pursuing
their claims if they can establish that that part of the payment into
court are attributable to the “concurrent claims”
does not fully
satisfy the damage they have suffered under this head.
...”
- Later
at page 53 his Lordship reiterated his earlier observations
noting:
- “Where
the previous recovery stems from the acceptance of a payment into court made and
accepted not only in respect of the
claim for damages under consideration, but
also in respect of other claims not relevant, the court must decide, and it is
for the
plaintiff to establish, by how much that part of the payment
attributable to the instant claim falls short of the total value of
the claim
itself. For my part I cannot see how this exercise can be done without an
investigation of the other claims, unless it be for the court to say that the
plaintiff has failed to establish that there is any excess of damage suffered in
respect of which he, the plaintiff, is entitled
to continue his action for
damages against the remaining defendants. ... The court must restrict its
attention to the effects of
benefits received by the
plaintiffs.”
- In
Townsend the trial judge did indeed proceed to consider the concurrent
claim and rule upon it. In doing so the trial judge did “his
best with
what material”[1]
he had, consistent with the observations of Oliver LJ.
- The
facts in this case are slightly distinguishable because here, unlike in
Townsend, part of the settlement related to a judgment debt. In my view
that fact compounds the difficulty because of the crystallised nature
of the sum
subject to compromise compared with the quantum of an untested claim. However,
the consequence of that matter has not
been debated so for present purposes I
proceed on the premise that the distinction does not bear upon this
application.
- It
follows that where the onus was upon the creditor and accepting the
debtor’s submission that the creditor’s affidavit
of debt is
inutile, it had, as at the date of hearing, provided little material to show how
at the date of payment any apportionment
should be made, the court simply has to
do the best it can with the material provided.
- At
the time of hearing the application the only relevant material was that
contained in the deed of settlement itself. The deed itself
distinguishes
between the claim in the District Court for $158,460.60 and the judgments
totalling $91,066.00. Further, it notes
the creditor’s belief that it is
owed a sum in excess of $250,000.00 in respect of all claims, costs and
interest. Finally
the terms of the agreement at clause 2.1 note that the
settlement is “by way of commercial settlement” being one made
without admission of liability. Of course the judgment has crystallised the
enforceable debt and the claim remains unliquidated.
- As
is discussed in the authority detailed below the absence of any expression of
intention would require the sum to be applied to
the discharge of the liquidated
debt first. On that basis there would have been an over claim of the sum due at
the time of service.
- However
subsequent to the hearing the creditor filed an affidavit swearing that it has
now made an election concerning the moneys
received from the co-debtor. It
contends it was open to it to do so because the debtor had made no such
election. In support of its
contention the creditor relied upon the observations
of Lockhart J. in Re Walsh; Ex parte Deputy Commissioner of Taxation
(NSW) [1982] FCA 88; (1982) 42 ALR 727 where at 728-729 his Honour said:
- "A debtor
who owes two debts to a creditor is entitled to appropriate a payment which he
makes to his creditor to one debt rather
than to the other. If he omits to do
so, the creditor may make the appropriation. If neither makes any appropriation,
the law appropriates
the payment to the earlier debt. If there is specific
appropriation by the debtor cadit quaestio. In the absence of a specific
appropriation
it is a question of fact whether there was any appropriation by
the debtor. To constitute an appropriation there must be more than
an intention
to appropriate by the debtor. I respectfully adopt the following passage from
the judgment of Greene LJ in Leeson v
Leeson [1936] 2 KB 156 at
162-3:-
'When, however, he does not notify the creditor of his intention, and when
the circumstances are such that the creditor receives
the payment merely in
satisfaction of the debts and the payment is not more appropriate to the payment
of the one debt than to that
of the other the creditor is entitled to make the
appropriation. When it is said that there need not be an express appropriation
of a payment, but that the appropriation can be inferred, that does not mean
that appropriation of a payment can be inferred from
some undisclosed intention
in the mind of the debtor. It is to be inferred from the circumstances of the
case as known to both parties.
Any other view might lead to injustice, as the
creditor's right to appropriate a payment would be defeated. When the matter is
examined
upon principle it will be found that an undisclosed intention in the
mind of the debtor is not sufficient to support an appropriation.
If authority
is needed for that proposition it can be found in the judgment of Lush J in
Parker v Guinness 27 Times LR 129 at 130
where he said: 'What is to be
considered is this. Is the true
inference to be drawn
from all the circumstances of the case that the debtor paid the moneys generally
on account, leaving the creditor
to apply them as he thought fit, or is the true
inference that he paid them on account of special portions of the debt for the
purpose
and with a view to wipe these out of the account? His undisclosed
intention so to do would, of course, not benefit him. It is what
he did in fact,
and not what he meant to do that is to be regarded.'
A debtor's undisclosed intention to appropriate a payment to one of two
debts owed by him to a creditor cannot benefit him.”
- To
similar effect the Queensland Court of Appeal in Caltabiano v Electoral
Commission of Qld & Anor [2009] QCA 182 cited with approval [at 95] the
following passage stated by Lord Macnaughten in Cory Brothers & Co Ltd v
Owners of the Turkish Steamship Mecca “The Mecca” [1897] AC 286
at 293:
- "When a
debtor is making a payment to his creditor he may appropriate the money as he
pleases, and the creditor must apply it accordingly.
If the debtor does not make
any appropriation at the time when he makes the payment the right of application
devolves on the
creditor"[2]
- It
follows in my view that prima facie it was open to the creditor to make an
election.
- The
second point taken by the debtor was that in any event if an election was made
it "is no longer open to your client [Applicant]
to elect to appropriate the
payment one way or the other”. The Court in Cory Brothers & Co Ltd
v Owners of the Turkish Steamship Mecca “The Mecca” (supra) held
that the creditor has the right of appropriation up to "the very last
moment".
- In
Morlines Maritime Agency Ltd v Skulptor Vuchetich (And by Amendment Between)
J Fenwick & Co Pty Ltd & Ors v The Proceeds of
the Sale of the Ship
"Skulptor Vuchetich" [1997] FCA 1629 the concept of "the very last moment"
was discussed. In the course of his reasons Tamberlin J stated:-
- “Allocation
of Funds
- In order to
justify the allocation of funds away from the in rem debts and in payment of the
agency commission, Morlines relies on
general law principles concerning the
entitlement of a creditor to allocate general payments, which are not allocated
by the debtor,
to pay whichever indebtedness is considered appropriate by the
creditor. Neither party submits that the rule in Devaynes v Noble
("Clayton's
case') [1815] EngR 77 (1816) I Mer 572 applies in the present
circumstances.
- The general
principle relied on by Morlines is that according to the general law:
‘part of the debt he likes, or to whichever
of two debts, if there are two
debts, he prefers’.
- See In re
Thomas Mortimer Limited [1964] 3 WLR 427 at 431 per Romer L.A. approved In re
Yeovil Glove Co Limited [1963] Ch 528 at 539. See also In re Sherry (1884) 25 Ch
D 692 at 702.
- If the
debtor makes an appropriation at the time of payment the creditor is bound by
the appropriation made by the debtor. However,
if the debtor has not made an
appropriation, the creditor has the right of appropriation up to "the very last
moment". But, so long
as the election rests with the creditor, and he has not
determined his choice, there is no room for the application of rules of law
such
as the rule in Clayton's case: see Corey Bros & Co v Owners of the Turkish
Steamship Mecca ("The Mecca") [1897] AC 286 at 292.
- Mere entry
of a payment by a creditor in a particular account would not amount to an
appropriation and the creditor would still be
at liberty to appropriate the
payment as he pleased: see “The Mecca” at 292.
- In Seymour
v Pickett [19051 I KB 715 the Court of Appeal applied the above principles in
relation to a claim for a debt based on
dental work. The claimant was not
registered under the Dentists Act 1878. He carried out dental work on a patient
and supplied him
with false teeth and gold. He made a charge of 45 pounds
overall and the patient gave him two cheques, for twenty pounds and twenty-five
pounds respectively. The latter cheque was post dated. The twenty pound cheque
was duly paid but the twenty five pound cheque was
dishonoured on presentation,
the drawer having stopped payment of it by his bankers. When the dentist brought
an action in the County
Court against the patient on the twenty-five pound
cheque the judge found that twenty-one pounds represented the price of the gold
and other materials supplied by the plaintiff The plaintiff then, when being
examined as a witness in the case, claimed to appropriate
the twenty pound
cheque to the payment of his professional fees. No appropriation had been made
by the patient. The Court of Appeal
held that the plaintiff was entitled to make
the appropriation and to recover twenty-one pounds in the action,
notwithstanding that
the Dentists Act 1878 prohibited a dentist receiving any
fee for the performance of any dental operation unless registered. This
decision
indicates the wide power which a creditor has to appropriate a payment where no
express allocation is stipulated by the
debtor.
- At 722-723,
Vaughan Williams Li said:
- "A good
many authorities have been cited upon the present appeal upon the question under
what circumstances and for how long a creditor,
who has received from his debtor
a sum of money unappropriated to any particular debt, has a right to appropriate
that sum Throughout
all the authorities it is plain that the right which the
creditor has is in the nature of an election, and the question to be ascertained
in each case is whether anything has happened to determine that right to elect.
Of course, the receiver of the money may make his
election before there is any
litigation.... But, on the other hand, there may be legal proceedings in which
in no sense could the
writ or the defence operate as an election, because there
is nothing in the action which involves any election.... The first time
at which
any such question [as to election] was raised was when the action was remitted
to the county court judge, and it is beyond
dispute the plaintiff did, when he
was in the witness-box in the county court, make his election. In my opinion he
was entitled to
do so then, if nothing had previously happened to determine his
right of election””.
- The
principles applied in “The Mecca” (supra) have been approved
and applied by the High Court in Visbord v Federal Commissioner of
Taxation [1943] HCA 4; (1943) 68 CLR 354 at 371 and Airservices Australia v Ferrier
[1996] HCA 54; (1996) 185 CLR 483 at 494-495 and I consider they bind me in this
instance.
- It
follows that I do not accept that in the circumstances of this case it was not
open to the creditor to make an election in respect
of the application of funds
received by it from the co-debtor or that it was not open to it to do so at a
very late stage as it did.
- The
debtor also submitted that the defect complained of is one that was not within
s.41(5) because the defect was not “only that the sum specified in the
notice as the amount due to the creditor exceeds the amount in fact
due”, but, he submitted, while the amount specified in the notice as
due ($92,862.40) exceeded the amount in fact due there was
another related
defect in the omission to record in the schedule the payment or credit received
since the date of the judgments.
In support of that general proposition the
debtor relied upon the observations of various courts found within the
authorities of
St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094; (2000) 181
ALR 682, SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625, Deputy
Commissioner of Taxation v Cumins (No.5) [2008] FCA 794 and Robert Hudson
Junior v Thomas James Donald & Anor [1997] FCA 852. Specifically in
respect of third party payments he referred to Somes v Duke Group Ltd
(supra).
- Each
of those cases dealt with circumstances where the bankruptcy notice overstated
the amount due to the creditor. Significantly
however in each instance the
overstatement was occasioned because of either a failure by the creditor to
allow an appropriate credit
which ought to have been recognised as being known
prior to the date of issue of the bankruptcy notice or failure to allow credit
for a payment made by a debtor prior to the issue of the notice. What was
significant in each of those cases was that as at the
date of the issue of the
notice an appropriate credit was not allowed. The facts of this case are
entirely distinguishable. Here
at the date of issue of the bankruptcy notice
there was no basis for the creditor to make any allowance for credit because no
agreement
had been concluded with the co-debtor and money had been received by
it either in respect of its claim against the debtor or in respect
of the
concurrent proceedings it was then maintaining against the co-debtor. No
authority was submitted in support of the proposition
that a notice would be
defective for failing to record a credit in respect of a payment made or other
credit then due following the
issue of the notice.
- I
do not accept the debtor’s submissions that the bankruptcy notice suffers
a fatal defect in form because of its failure to
note credit for the sum of
$30,000.00 paid by the co-debtor. Accepting I am correct, and that sum was to
be totally attributable
to the judgment debts relied upon in support of the
bankruptcy notice, the fact that the credit arose and that sum was paid after
the issue of the notice answers the debtor’s complaint. As the Full Court
observed in Cumins, at [10-11], citing with approval
Walsh:-
- “10
The bankruptcy notice speaks at the date of its issue: Walsh v Deputy
Commissioner of Taxation [1984] HCA 33; (1984) 156 CLR 337 at 339; Emerson v Wreckair Pty Ltd
[1992] FCA 16; (1992) 33 FCR 581 at 587 (Emerson). At that date, the judgment debt was
$38,084,522.24 as recorded in item 1 in the Schedule to the bankruptcy notice.
The fact that the judgment sum might be or is reduced in the future does not
invalidate the bankruptcy notice: Emerson 33 FCR at
587.”
- There
is no controversy that the bankruptcy notice was a valid one "at the date of its
issue" for at that date the notice complied
with the form proscribed by
regulation and correctly identified the amount due to the creditor. At the date
of issue the notice
spelt out clearly and correctly what the debtor had to do to
avoid committing an act of bankruptcy. It is not to the point that
later
payments were made varying the sum due. Remedies for payments made following the
issue of a bankruptcy notice are contemplated
by s.41(6). In my view the notice
was valid.
- That
follows irrespective of whether I am correct or otherwise in my analysis of the
debtor’s claim concerning the debtor’s
submissions related to double
compensation and/or the appropriation of payments the fact that the amount
claimed in the bankruptcy
notice at the date of issue was the correct amount
then due is, in my view, fatal to the debtor’s application on this
point.
Order for extending time under s.41(5)
- The
debtor seeks an order under s.33(1)(c) of the Act extending the time for giving
notice under s.41(5).
- It
is generally accepted that provided proper notice is given pursuant to s.41(5)
disputing the validity of a bankruptcy notice because
of overstatement the
subject bankruptcy notice is deemed invalid irrespective of whether the debtor
could reasonably have been misled
or otherwise suffer prejudice by it; Walsh
v Deputy Commissioner of Taxation [1984] HCA 33; (1984) 156 CLR 337.
- The
fact the judgment sum might be or is reduced after the date of the notice but
before its service on the debtor will not invalidate
the bankruptcy notice; see
Emerson v Wreckair Pty Ltd [1992] FCA 16; (1992) 33 FCR 581 at 587.
- Given
my earlier determination that the bankruptcy notice is valid the question now is
whether the debtor should have an extension
of time to give notice pursuant to
s.41(5) to then enjoy the benefits of that provision. Power to extend time is
found in s.33(1)(c).
- The
principles governing extension of time for applications under s.41(5) were
recently considered in Cumins v Deputy Commissioner of Taxation [2008]
FCAFC 185. Dealing with the interaction between s.33(1)(c) and s.41(5) the Full
Court opined:
- “[29]
It is clear that s.33(1)(c) does not authorise the extension of time to comply
with a bankruptcy notice. The clear object
of s.41(5) is to ensure that, before
the time for compliance of the bankruptcy notice has expired, the creditor must
be notified
of any alleged misstatement of the amount due. The limitation on
the general power to extend time contained in s.33(1)(c) must be
understood in
light of the specific power conferred by s.41(6A) to extend time for compliance.
- [30] In
that context, s.41(5) must be construed as requiring that notice of a
misstatement that might invalidate a bankruptcy notice
must be given prior to
the time when an act of bankruptcy would be committed by failure to comply with
a notice. Section 33(1)(c)
should not be construed as authorising an extension
of any time for giving such notice that does not extend the time for complying
with the notice.
- [31]
Otherwise, doubts could arise as to whether or not an act of bankruptcy has been
committed. So long as an attack on a bankruptcy
notice, by reason of alleged
misstatement of the amount due, is under consideration by the court, the court
will extend the time
for compliance. That is to say, a bankruptcy notice
should not purportedly be set aside after the time for compliance has been
expired. Section 41(6A)(b) provides a mechanism whereby the court can
extend time for compliance while the question of setting aside a bankruptcy
notice is considered. That is, s.41(5) is a specific provision proscribing the
conditions and restrictions on, and the mode in,
which the debtor may give
notice disputing the validity of a bankruptcy notice on the ground of
misstatement and supplants the generality
of s.33(1)(c);
...”
(Authorities and citations
omitted)
- These
observations followed earlier remarks concerning the operation of s.41(6) in the
statutory scheme. That provision provides
that where the amount specified in a
bankruptcy notice exceeds the amount in fact due and the debtor does not give
notice in accordance
with s.41(5) the debtor will nevertheless be deemed to have
complied with the notice if, within the time allowed for payment, the
debtor
takes such action as would have constituted compliance with the notice if the
amount due had been correctly specified in it.
- The
debtor’s counsel acknowledged the strength of the observations made by the
Full Court. He contended however that the Full
Court’s observations were
obiter and should be afforded a guarded construction particularly in light of
its observations at
[32] of the judgment where their Honours
noted:
- “In
any event, having regard to those considerations, even if there were power to
extend the time for giving notice otherwise
than by extending the time for
compliance, the circumstances in which it would be exercised must be quite
exceptional.”
- In
supplementary submissions dated 21 December 2010 he contended there was reason
to doubt the correctness of the Full Court’s
statements. His contention
was that neither s.41(5) nor the surrounding subsections in s.41 were concerned
with the questions of
extensions of time for giving notice of application and
accordingly s.41(5) and s.33(1) addressed differing issues. Accordingly,
he
contended, the approach of the Full Court impermissibly sought to confine the
operation of s.33(1)(c) by introducing a limitation
not found in the express
words of s.41. It was contended this approach ignored the language of s.33(1)
(“if this Act does
not expressly provide to the contrary”) and
authority; David Grant & Co Pty Ltd v Westpac Banking Corporation
[1995] HCA 43; (1995) 184 CLR 265 at 275-6. I do not agree. In my view the approach of the
Full Court is entirely consistent with the High Court’s analysis
in
David Grant & Co Pty Ltd (supra), particularly at pages 277 and 278,
when discussing a relevantly analogous part of the Corporations Act.
- In
Cumins the court had earlier observed that there was no need for it to
expressly consider an appeal from the judgment below on the point
concerning the
single judge’s decision refusing to exercise discretion to extend time
pursuant to s.33(1)(c). That was because,
for reasons given earlier in its
judgment, it did not consider the bankruptcy notice was defective. On that
basis the debtor’s
submission was that the Full Court’s observations
at [29] to [31] were obiter and not binding.
- The
point made by the debtor is that Walsh should be confined to its own
facts and distinguished in this instance because here the payments were made by
a third party to the
creditor, a fact unknown to the debtor at the time of
service of the bankruptcy notice and during the subsequent twenty-one day
compliance
period. In Walsh the debtor had full knowledge of the
payments made to the creditor as in that instance he had made them.
- The
question posited by the debtor is, what is the case where contrary to what
occurs ordinarily, it is not within the debtor’s
knowledge that payments
have been made to the creditor in reduction of the debt since the issue of a
notice?
- The
debtor says that as he did not know about the payments reducing the indebtedness
of the sum claimed in the bankruptcy notice that
fact distinguishes it from the
facts in Walsh. In particular he submitted the High Court’s
analysis was founded upon its observation that it is “ordinarily within
the knowledge of the debtor whether or not any payments have been made”.
The historical development of s.41(5) was explored
in depth in the Full Court in
Seovic v Groeneveld [1999] FCA 255; (1999) 161 ALR 543. Nothing in that case addresses
the issue now raised.
- I
agree with the debtor’s submissions that it appears that the principle in
Walsh has not been considered or distinguished on the basis of the facts
now before me. He submitted that in that event I ought distinguish
Walsh
particularly because to extend the principle in Walsh for cases of this
kind would expose debtors to potential sharp practice where unscrupulous
creditors may not account for third party
payments. It was submitted that the
balance between the rights of debtors and creditors would be preserved by
holding that the enquiry
posited by s.41(5) is directed at the time of service
(not issue) for occasions where the payment was not made by the debtor or with
his knowledge. He contended that such an approach was consistent with the
language of s.41(5) and the scope and objects of the Bankruptcy Act. Of
the authorities cited by the counsel for the debtor I consider that the decision
in Re Sgambellone; Ex parte Jacques [1994] FCA 1377; (1994) 126 ALR 71 to be particularly
helpful.
- The
other decisions referred to by the debtor do not assist because in those cases
the matter of “knowledge” was not discussed.
Indeed, as the High
Court noted in Walsh all the cases referred to proceeded on the premise
that both debtors and creditors remained equally informed of critical
information
such as the primary judgment debt and sums which may have been paid
in reduction of such debt. Difficulties generally were evident
because of
misstatements of the judgment debt or the credit that ought to be allowed:
Unicomb v Cairns [2009] FCA 988 – an under claim constituting a
formal defect; Burton v Belgravia Investments Pty Ltd [1999] FCA 1840 -
the effect of an assignment; and Re Clubb; Ex parte Clubb v Westpac Banking
Corporation (supra) – overstatement based on miscalculation of
interest. An exception to this situation is to be found in Re Lynch;
Ex parte Depela Pty Ltd (in liq) (1998) 153 ALR 271- a case involving
the change of address of the petitioning creditor during the compliance
period.
- I
was referred to no authority that addressed a change in material particulars
between the date of issue of a bankruptcy notice and
its service except Re
Lynch (supra). It was distinguished on the basis that even a willing debtor
could not comply with a bankruptcy notice if the address to which
compliance was
directed changed and no notice of a substitute address was provided. In my view
that situation is entirely distinguishable
from a case such as the present where
there could at least have been compliance.
- However
in Re Sgambellone, the fact of a “setoff” and the
court’s approach to that matter has parallels with this case. In this
case there
is no question that the amount stated in the bankruptcy notice was
correct as at the date of issue of the notice. Difficulties arose
here because
of a payment made by a third party. The debtor had no knowledge of the fact of
payment at any time within the compliance
period following service. If in this
case the debtor had paid the sum demanded in accordance with the notice then
clearly there
would have been an overpayment by him of a sum of $30,000.00.
However to that extent that sum would have represented funds in the
hands of the
creditor as monies had and received to the benefit of the debtor.
- In
Re Sgambellone the judgment supporting the bankruptcy notice was
subject to a setoff claimed by the debtor. At page 76 Drummond J
observed:
- “So,
a legal debt, which would include a judgment debt of a kind here in question, is
still a debt owing at law, even though,
where the debtor can rely on an
equitable setoff to answer, in part, the legal debt, equity will not allow the
creditor to treat
the debtor as being indebted to him, at least to the extent of
the equitable setoff. An equitable setoff thus does not operate as
an automatic
extinguishment to the extent of the setoff of the liability at law ---- This
being so, there is no basis for the proposition
that the availability to the
debtor of a setoff, either legal or equitable, was not taken into account by the
creditor in his bankruptcy
notice, results in the amount of the debt being
overstated. The decision in Re: a debtor (1919) B&Cr221 to which the
solicitor
for Jacques referred, also shows that the existence of a setoff, less
than the amount of the judgment debt, provides no basis for
invalidating the
bankruptcy notice where the judgment debtor fails to pay the full amount
demanded in the bankruptcy notice in reliance
on the setoff. There, Horridge J,
with Rowlett J agreeing refused to hold that a receiving order was wrongly made
because the act
of bankruptcy relied on, noncompliance with the bankruptcy
notice, had not occurred. The debtor had a setoff for an amount less
than the
judgment debt on a ground independent of the basis on which the judgment was
given. Horridge J found in s1(g) the Bankruptcy Act 1914 (Eng), which is a
provision similar in effect to s40(1)(g) and s41(1), (5) and (6) of the
Bankruptcy Act 1966 (Cth), justification for saying at
226-7:
- What, then,
is the effect of these cases decided on the old Act? It is, I think, that if
anything has been paid off the judgment,
the amount required to be paid under
the bankruptcy notice must be the balance then due upon the judgment. I think
they also decide
that if any calculation as to other sums, such as costs or
interests, are made, they must be correctly made so as to show the actual
amount
due upon the judgment itself; but I do no think they deal with any possible
setoff which the debtor may have against the judgment
debt. My reason for so
thinking is based on s1 of the Act.
- After
quoting that provision his Honour continued:
- I think
that what was intended was that the notice should properly state the amount
actually due on the judgment. If there was a
setoff which equalled the amount
due on the judgment, then the debtor should set up and comply with the notice by
saying that there
was such a setoff; but if there was merely a setoff which did
not equal the amount due on the judgment, then he nonetheless committed
an act
of bankruptcy in not paying the amount due on the judgment, because the fact
that he had not a setoff equal to the amount
of the judgment presupposes that
there must be something due on the judgment, and that he, by not complying with
the bankruptcy
notice, commits an act of bankruptcy; nevertheless, on the
hearing of the petition, he would be entitled to show that he had such
a setoff
as reduced to the petitioning creditors debt below the amount sufficient to
support the petition.”
- By
analogy with this case the prospect of a distinct, although relevantly proximate
legal obligation upon the creditor to repay any
overpayment made would not, in
my view, detract from the obligation upon the debtor to comply with the
bankruptcy notice.
- In
terms of construing s.41(5) in the current context clearly practical
considerations arise. Such were identified in the observations
of the High
Court in Walsh which made such observations from the perspective of
debtors and the Federal Court in Re Sgambellone which made
observations from the perspective of
creditors[3].
- However
commonly all courts see the need to avoid debtors taking “unmeritorious
advantage of minor errors and that unnecessary
and wasteful litigation” be
avoided: Seovic at [37] page 555 or carrying “out a scheme intended
to frustrate the efforts” of a creditor Walsh (supra) at
339. In my view a construction of s.41(5) which directs enquiry to the time of
issue rather than the time of service achieves
a fair balance between the
competing interests of both creditors and debtors particularly given the scheme
of the Act and its operation
as identified by Horridge J in Re a Debtor
(1919) B & Cr 221 cited with approval by Drummond J in Re Sgambellone
where his Honour stated:
- “Nevertheleses,
on the hearing of the petition, (the debtor) would be entitled to show that he
had such setoff as reducing
the petitioning creditor’s debt below the
amount sufficient to support the petition.”
- It
follows that provided the notice issued complied with the requirements of
s.41(3) (in this case there is no issue that it did not)
then the only remedy
for a debtor is to either claim the overstatement as provided by s.41(5). If he
did not know he had made an
overpayment then his remedy is in law to recover the
excess and resist a creditor’s application pursuant to s.52(2).
- Notwithstanding
the observations of the Full Court are obiter, it is plain from the decision on
appeal and their Honours’ observations
that they were squarely considering
the issue now raised before me. Although the observations were strictly obiter
they are in my
view extremely persuasive and it would be foolhardy to ignore
them. Perhaps the only scope for consideration arises from their Honours’
closing remarks that if there were such a power to extend time for giving notice
otherwise than by extending the time for compliance
the circumstances in which
it would be exercised must be quite exceptional. However for reasons that follow
I do not think those
remarks can afford any comfort to the debtor.
- I
particularly note from the judgment in Cumins it appears that the court
was not taken to the court’s judgment in Re: Shaddock: Ex parte
Commonwealth Bank of Australia [1998] FCA 355 (per Goldberg J). I consider
it important to discuss that authority because it exemplifies a line of
authority which is inconsistent
with the commonly propounded propositions for
which Re
Wilhelmsen[4] is
cited as authority and is consistent with the views of the Full court in
Cumins.
- Re
Wilhelmsen appears to have been subsequently relied upon without discussion
as authority for the proposition that an extension of time under
s.41(5)
pursuant to s.33(1)(c) has the concurrent effect of extending time for
compliance with the bankruptcy notice. For instance
in Re Dier; Ex parte John
Suduk (Federal Court of Australia – 9 March 1990 (BC 9003327)) an
application was made pursuant to s.33(1)(c) to extend time pursuant
to s.41(5)
to give notice of an overstatement. Beaumont J applied Re Wilhelmsen
without any explanation although he refused the application on discretionary
grounds because the notice was given nine months out
of time. Likewise in Re
Clubb; Ex parte Clubb v Westpac Banking Corporation (1989) 93 ALR 123
Burchett J simply relied upon Re Wilhelmsen without any discussion in
considering an application pursuant to s.33(1)(c) to extend time to give notice
pursuant to s.41(5) which
notice was three days late.
- On
that point those decisions depart from the views of Goldberg J in Re
Shaddock and the Full Court in Cumins. For the reasons that follow
I have adopted the views expressed in Re: Shaddock and the Full Court in
Cumins as reflecting the state of the law on this point. It follows that
on the first point I do not think any order for an extension of
time will serve
any purpose where an act of bankruptcy has been committed before the making of
the application.
- In
Re Shaddock Goldberg J was considering an application, in part, in
similar terms to this application. In particular the bankruptcy notice in
that
application was alleged to have overstated the sum due. There applications were
made pursuant to s.41(5) to extend the time
for giving notice as well as
pursuant to s.41(6A) to extend time for compliance. They were both made
following the expiration of
the date for compliance with the bankruptcy notice.
That is to say that at the time of making of the applications the applicant
debtor had committed an act of bankruptcy. In particular, his Honour considered
and explained Re Wilhelmsen. As his Honour noted in Re Shaddock
the facts in Re Wilhelmsen were not so clear. He noted that on its
face his Honour Pincus J in Re Wilhelmsen found that the notice of and
the s.41(5) application was received by the creditors two days after the due
date. However in an earlier
passage Pincus J found that following
“some rather confused evidence” the Brisbane agents of
the solicitors for the creditors were given notice and made aware of the
debtor’s complaints (including
particulars) concerning the overstatement
in the bankruptcy notice some time before the due date for the application. In
the reasons
Pincus J simply stated:
- “To
my mind, the question is whether it is implicit in s.41(5), read with
s.33(1)(c), that one cannot extend the time for giving
a s.41(5) notice other
than by extending the time for compliance with the requirements of the
bankruptcy notice, under s.41(6A).
My conclusion on that point is in favour of
the debtor, because, although a s.41(5) notice must prima facie be given within
the
time allowed for the compliance with the requirements of the bankruptcy
notice (which time is briefly described there as the “time
allowed for
payment”), that is to be read subject to s.33(1)(c). I think the time for
giving a s.41(5) notice may be extended
without effecting the time for
compliance with the requirements of the bankruptcy
notice.”[5]
- There
was no real explanation by Pincus J of his reasoning beyond that point. His
Honour’s decision is clearly inconsistent
with the Full Court’s
obiter remarks in Cumins particularly when regard is had to the Full
Court’s explanation of the entire scheme of s.41. In its reasons the Full
Court
cited Re Wilhelmsen but did not formally overrule or distinguish
it. However it seems plain from its reasoning that the Full Court’s views
are
not compatible with the views of his Honour Pincus J in Re
Wilhelmsen.
- However
the Full Court’s views do accord with those of Goldberg J in Re
Shaddock where there his Honour engaged in a more detailed and reasoned
analysis of the issue. Unfortunately however, it appears that the
Full Court was
not referred to that authority which undoubtedly would have been of great
assistance to it. Matters carefully examined
by Goldberg J in Re Shaddock
included the relationship between s.33(1)(c), s.41(5) and s.41(6A); the
significance of a pre-existing act of bankruptcy upon the
courts jurisdiction to
generally extend time for compliance; and, the bearing a pre-existing act of
bankruptcy has upon the utility
of an order pursuant to s.41(5).
- First
in Re Shaddock Goldberg J, while accepting the primary proposition in
Re Wilhelmsen that there was power to extend time for giving s.41(5)
notice, also recognised s.33(1)(c) expressly disallowed the power to extend
time
fixed for the compliance of the requirements of the bankruptcy notice. His
Honour considered that against the background of
the application then before him
that that provision would not provide any efficacious relief to extend time
pursuant to s.41(5) as
any such relief would not affect the time for compliance
with the requirements of a bankruptcy notice and could not permit an extension
pursuant to s.41 (6A).
- Secondly,
after discussing the jurisdictional problems associated with bringing an
application to extend time for the hearing of an
application for the extension
of time for compliance with a bankruptcy notice, his Honour held that the
problem of jurisdiction continued
and the act of bankruptcy remained. The
application to extend time for giving a s.41(5) notice would not cure that
defect, even if
that application were successful. Following the Full Court in
Streimer v Tamas [1931] VicLawRp 32; (1981) 54 FLR 253 his Honour continued:
- “The
Act confers jurisdiction on the court to make orders extending the time for
compliance with the bankruptcy notice, notwithstanding
the fact that at the time
for making the order, the time for compliance with the bankruptcy notice has
already expired provided that
one of the two limbs of ss(6A) has been
fulfilled.”[6]
- That
view is entirely consistent with the view expressed by the Full Court in
Emerson v Wreckair Pty Ltd [1992] FCA 16; (1992) 33 FCR 581 at 587 where the Full Court
noted:
- “It
is also well established that, once an act of bankruptcy has been committed by
the debtor’s failure within the time
specified to comply with the
requirements of the bankruptcy notice would have satisfied the court that he has
a counterclaim, setoff
or cross demand of the requisite kind, it remains an
available act of bankruptcy even though subsequently the judgment on which it
is
based is set
aside.---”[7]
(Authorities
and citations omitted)
- Thirdly,
in Shaddock an application had also been made pursuant to s.33(1)(c) to
extend time. Although Goldberg J did not disagree with the views of
Pincus J in
Re Wilhelmsen that there was power to extend the time for giving s.41(5)
notice without effecting the time for compliance with the requirements
of the
bankruptcy notice his Honour concluded in any event that the application then
before him was in effect to ground a jurisdiction
in the court to extend the
time for compliance with the bankruptcy notice and that “there is no
point therefore, in allowing the amendments sought as they do not cure the
jurisdictional defect created by the absence
of the filing of an application
(for an extension of time pursuant to s.41(6A)) on or prior to (the due
date).”
- Overall
I consider I ought apply the views of the Full Court and of the Full Court in
Cumins and Goldberg J in Re Shaddock and the cases adopted by that
authority in preference to the approach expressed in Re Wilhelmsen.
- In
any event were I wrong in my view that s.33(1)(c) does not permit an extension
of time for the giving of notice under s.41(5) because
the application has been
made since the expiration of time for compliance with the notice I consider the
application for an extension
of time should fail on discretionary grounds. The
bankruptcy notice was served upon the debtor on 20 July 2010. The debtor took
no action under s.41 and permitted an act of bankruptcy to occur. While it is
correct that the debtor was not aware of any arguments
he may have had in
respect of the validity of the notice because of an alleged overstatement at the
time of his committing an act
of bankruptcy he certainly did so from early
October 2010. Despite that fact he did not make this application until 19
November
2010, that is almost two months after the filing of the
creditor’s petition and one month after its service upon him. If the
Wilhelmsen line of authority is correct it is also correct as was stated
by Beaumont J in Re Dier that “the evident policy of s.41(5) is
to ensure that, ordinarily at least, if notice is to be given by a debtor under
that provision it
should be given
promptly”.[8]
- The
debtor’s explanation was that it took some time for advice to be obtained
as to the appropriate course forward. While it
is appropriate that advice be
sought the very strict and tight timeframes provided by the legislation
highlight the need for promptitude
when considering applications of this kind.
In those circumstances a delay of approximately five weeks is
unsatisfactory.
Summary
- In
my view:
- the
bankruptcy notice in its present form was not invalid at the time of issue;
- the
court has no power to extend the time pursuant to s.33(1)(C) for the giving of
notice pursuant to s.41(5);
- that
in any event the application ought fail on discretionary
grounds.
Orders
- Application
dismissed.
- Subject
to any other application being made within seven days of the date of this order,
the applicant pay the respondent’s
costs of and incidental to the
application to be assessed on the standard basis.
I certify that
the preceding eighty-four (84) paragraphs are a true copy of the reasons for
judgment of Burnett FM
Date: 10 February 2011
[1] Townsend
(supra) at p.42
[2]
See also Mackenzie & Anor v Albany Finance Ltd [2004] WASCA 301 at
113 and 114.
[3] At page
77.
[4] This
authority was cited by the Full Court in Cumins but was not
discussed.
[5] At the
time of that decision it was only necessary to give notice rather than make
application as is the case
now.
[6] At page 7 of
the Austlii
transcript.
[7] At
587.
[8] Penultimate
paragraph of reasons
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