Clyne v. Deputy Federal Commissioner of Taxation.
Judges:Lockhart J
Court:
Federal Court
Lockhart J.
Peter Leopold Clyne, the applicant, seeks to set aside a bankruptcy notice issued on 4 May 1982 at the request of the Deputy Commissioner of Taxation, the respondent. The notice requires the applicant to pay the sum of $334,826.25 or to secure the payment thereof or compound it. The notice is based on a judgment obtained by the respondent against the applicant in the Supreme Court of New South Wales, Common Law Division, on 11 March 1982 in the above sum.
The applicant, who conducted his own case, challenged the validity of the bankruptcy notice on two grounds. First, he submitted that the notice did not clearly and unambiguously specify a period of time within which compliance was required. Second, he argued that the judgment was not a final judgment within the meaning of para. 40(1)(g) of the Bankruptcy Act 1966 (``the Act'') and therefore could not be the foundation for a valid notice.
In the event that he fails on both these grounds the applicant sought an order extending time for compliance with the requirements of the notice until certain references to a Board of Review under the Income Tax Assessment Act 1936 (``the Assessment Act'') and any appeals arising therefrom have been determined.
The facts relating to the service of the bankruptcy notice are important and need to be stated in some detail. The notice was served pursuant to an order of this Court made on 25 May 1982, on the ex parte application of the respondent, in the following terms:
``The Court Orders that:
1. personal service of Bankruptcy Notice No. B. 1905 of 1982 dated 4 May 1982 and filed herein, be dispensed with;
2. leave be given to effect service of the said Bankruptcy Notice on the Respondent Judgment Debtor, outside Australia;
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3. true copies of the said Bankruptcy Notice stamped and signed by the Deputy Registrar together with sealed copies of today's orders be sent, as follows -
- (i) by pre-paid air mail addressed to the said Respondent Judgment Debtor at C/-
- HOTEL SACHER
- A-1015 Vienna
- PHILHARMONIKERSTRASSE 4
- REPUBLIC OF AUSTRIA
and
- (ii) by pre-paid mail addressed to the office of Z. Weiss Solicitor, the said Respondent Judgment Debtor's Solicitor in Australia, C/- Messrs. Weiss & Co., Solicitors, 8th floor, 64 Castlereagh Street, Sydney in the State of New South Wales;
4. upon the expiration of fourteen (14) days from the date of posting the said documents pursuant to these orders, due service of the said Bankruptcy Notice be deemed to have been effected upon the said Respondent Judgment Debtor;
5. the time for compliance with the requirements of the said Bankruptcy Notice or the time within which the said Respondent Judgment Debtor shall satisfy the Court that he has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt, being a counter-claim, set-off or cross demand that he could not have set up in the action in which the judgment was obtained shall be twenty-eight (28) days from the date of such due service of the said Bankruptcy Notice as is ordered by the Court pursuant to these orders;
6. the costs of this Application be reserved;
7. in addition to the orders already made I allow amendment of the said Bankruptcy Notice by substituting therein, the figures and words twenty-eight (28) days for the figures and words fourteen (14) days presently appearing as the time required for compliance with the said Bankruptcy Notice.''
In fact the form of order entered in the Registry is incorrect because order 7, when made by the Court, contained no reference to the figures ``28'' or ``14''. The order referred only to the words ``twenty-eight'' and ``fourteen''. However although this discrepancy was referred to in argument, nothing turns on it.
On Thursday 27 May 1982 a true copy of the bankruptcy notice stamped and signed by a Deputy Registrar in Bankruptcy, a sealed copy of the Court's order made on 25 May 1982 and a covering letter dated 27 May 1982 from the Deputy Crown Solicitor were sent by pre-paid air mail addressed to the applicant at his Vienna address. Also on 27 May 1982 copies of the above documents were sent by pre-paid mail addressed to the Sydney office of Mr. Weiss, the solicitor for the applicant. The applicant admits that he received these documents on 1 June 1982 and that his solicitor also received them.
It is common ground that the bankruptcy notice sent to the applicant and to his solicitor was in the form set out in the document which for convenience I have annexed to my reasons for judgment and which is accurately reproduced except that the word ``twenty-eight'' in the body of the notice together with the initials ``J.H.'' which appear to their right, the asterisk to their left and the words and figures at the top right-hand corner
``*Amended pursuant to Order of Court of 25 May 1982
J.P. Hasson 27 -- Deputy Registrar 5 -- 82 --''
were written in red on the copies served on the applicant and his solicitor with the result that they readily attract the eye.
Bankruptcy notices must conform strictly to the requirements of the Act and the Bankruptcy Rules. If a notice is defective a question arises whether the defect renders the notice a nullity. If the defect is such as could reasonably mislead the debtor then the notice is a nullity:
Pillai v. Comptroller of Income Tax (1970) A.C. 1124.
The test is not whether the debtor was in fact misled but whether he could be misled:
James v. F.C. of T. (1955) 93 C.L.R. 631 at p. 644;
Re Wong; Ex parte Kitson (1979) 38 F.L.R. 207. I said in Wong (at p. 217):
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``A debtor is not required to engage in the task of construing a bankruptcy notice and resolving questions of doubt or ambiguity. A bankruptcy notice ought to be clear and unambiguous. Noncompliance with its requirements constitutes an act of bankruptcy with quasi penal consequences. If it is equivocal, generally the equivocation must be resolved in favour of the debtor.''
It is well established that to determine whether the debtor could be misled the Court is not confined to a mere examination of the notice itself. It may look at facts extraneous to the notice:
Re Wimborne; Ex parte The Debtor (1979) 24 A.L.R. 494.
I turn to the applicant's submission that the bankruptcy notice is a nullity because it did not clearly and unambiguously specify a period of time within which compliance was required.
There were two limbs to this argument. First the applicant submitted that the notice was misleading in that it stated the period within which compliance was required as being ``fourteen'' days in the typed form, yet over the word ``fourteen'' there was handwritten in red colour ``twenty-eight'' together with the asterisk referring the reader's attention to the other asterisk in the top right-hand corner where reference was made to the amendment pursuant to the Court order of 25 May 1982. The applicant submitted that the debtor would be in a quandary as to the period within which compliance was required.
I do not know why the bankruptcy notices served on the applicant and his solicitor pursuant to the Court's order did not show the word ``fourteen'' struck out and ``twenty-eight'' substituted so that it would have been obvious that compliance with the requirements of the notice was required within twenty-eight days after service of the notice on the applicant. The order allowed the bankruptcy notice to be amended by substituting ``twenty-eight'' for ``fourteen''. Plainly this required striking out the reference to ``fourteen'' and inserting ``twenty-eight'', otherwise there could not be the substitution of the latter for the former. However this was not done.
If the notice were to be read by itself without reference to the copy of the Court's order which accompanied it in the post when served on the debtor, in my view it would be misleading and fundamentally defective. What I said in the passage cited earlier from Wong would then be especially apposite.
It is permissible, however, to consider the notice in the light of matters extraneous to the notice itself, in particular the copy of the Court's order of 25 May 1982.
The applicant submitted that the copy of the order should be treated as part of the notice itself because the words and figures written in red on the notice incorporated the order by reference. It was said that the two documents should be read as one.
I do not accept that submission. Even if I were to do so the whole of the order could not be treated as incorporated in the notice itself. Only order 7, which allowed the notice to be amended by substituting ``twenty-eight'' for ``fourteen'' days, could be relevantly treated as part of the notice. In my view the order is not part of the notice; but it may be examined to determine whether the debtor could have been reasonably misled. This was the submission of counsel for the respondent and I accept it. The order accompanied the notice and therefore presumably would have been read by the applicant. To ignore the order when considering the assertion of the applicant that he could have been perplexed by the notice would be unreal and contrary to good sense.
When the notice is read in the light of the order it is clear that ``twenty-eight'' must be treated as having been substituted for ``fourteen''. The applicant could not reasonably have been misled. Whether he was in fact misled is not, of course, the point.
The second limb of the attack made by the applicant on the validity of the bankruptcy notice is more difficult. It was submitted that the applicant could not know when the notice was served on him and therefore would not be able to calculate the commencing date from which the period of twenty-eight days for compliance ran. The argument was that, as due service of the notice was deemed to have been effected ``upon the expiration of fourteen (14) days from the date of posting the said documents pursuant to these orders'', the applicant could not have known when the documents were posted. Although
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they were in fact posted on 27 May 1982 this could not have been known by the applicant. The fact that the letter from the Deputy Crown Solicitor accompanying the documents was dated 27 May was irrelevant because, so far as the debtor was concerned, it may not have been posted on that date. The debtor conceded that the position may have been different if some statement had been made to him in one of the documents, for example the letter, stating that the date of posting was 27 May; but this was not done.Counsel for the respondent submitted that the notice was not defective in this respect. He submitted that as the Court order is not part of the notice it must be ignored for the purpose of determining if the notice is itself defective. He pointed to the relevant provisions of the Act, in particular subsec. 41(1) and (2), Bankruptcy Rule 83 and the prescribed form of bankruptcy notice (Form 4) and submitted that the notice complied with the prescribed form and therefore was not defective in the particular respect alleged by the applicant.
In my opinion this submission of the respondent is sound. The notice itself did follow the prescribed form when it required compliance with the notice within twenty-eight days after service of the notice on the applicant excluding the day of service.
However, on the evidence before me the applicant could not have known with any certainty the date on which the notice and Court order were posted to him. They were in fact posted on 27 May and were received by the debtor on 1 June; but there was nothing received by the applicant which would have reliably informed him of the date of posting.
It is the practice in the office of the Deputy Crown Solicitor of the Commonwealth at Sydney, which had the carriage of the service of the bankruptcy notice on the applicant, ``for all mail to be franked with the appropriate postage by a franking machine (which also records the date upon which the franking occurs) prior to the said mail being delivered to the General Post Office, Martin Place, Sydney''. There is no clear evidence that the date franked on the envelope sent to the debtor was 27 May although probably that was the case.
The envelope is not in evidence. It was received by the applicant but there is no evidence of its ultimate fate. The applicant was entitled to know clearly and unambiguously the date of posting of the notice. On no view of the facts could he have known this. It goes too far to say that because the envelope probably bore the franked imprint of a date, which more likely than not was the date of posting, the applicant should be assumed to know what that date was. People frequently either do not look at such matters on envelopes or throw them away. Also, printing from franking machines may become obscured in the course of transit of the envelope, and it is possible that the date was not clearly shown on the envelope at relevant times.
This is too thin a branch, or perhaps I should say a twig, on which to set in train the machinery of bankruptcy which may ultimately result in the commission of an act of bankruptcy.
These matters lead me to conclude that the notice should be set aside. As I observed in
Re Sterling; Ex parte Esanda Limited (1979-80) 30 A.L.R. 77, the Court's power to set aside bankruptcy notices is not conferred specifically by any provision of the Act, although it is assumed (see for example subsec. 41(6A), (6B) and (6C)). Courts exercising bankruptcy jurisdiction have set aside bankruptcy notices over many years and on various grounds. The circumstances in which notices may be set aside are not governed by rigid rules and do not fall into fixed categories. The power may be exercised if warranted on the facts of a particular case. The source of this power is subsec. 30(1) of the Act. That subsection has been liberally construed by the Courts. The circumstances which may give rise to questions or problems in matters of bankruptcy are so multifarious that it is impossible to confer powers upon the Court to deal with them other than in general terms. Such powers must not be given any narrow or mean construction. Non-compliance with the requirements of a bankruptcy notice is an act of bankruptcy on which almost every petition is based which comes before the Court. A bankruptcy notice is the foundation of a bankruptcy and involves quasi penal consequences. The Court must be able to supervise bankruptcy notices at all stages of their existence. If an
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alternative source of power were needed, however, it would be found in the Court's inherent jurisdiction. In my opinion fairness requires that the bankruptcy notice be set aside.The respondent submitted that if the Court considered that the notice should be set aside because of the problems associated with the posting, it was an appropriate case for the Court to vary the orders made on 25 May 1982. The amendment suggested was that the words ``from the date of posting the said document pursuant to these orders'' be deleted from order 4 and the words ``from the date of receipt by the Respondent Judgment Debtor of a true copy of the said Bankruptcy Notice stamped and signed by the Deputy Registrar as referred to in order Three made by me'' substituted. The applicant opposed the amendment.
Time for compliance with the requirements of the bankruptcy notice has already been extended by the Court so that no act of bankruptcy has yet been committed by the applicant. The respondent concedes that if an act of bankruptcy had already been committed the orders of 25 May could not be varied.
In my opinion it would be inappropriate to vary order 4 at this stage. The effect of the variation would be to render certain an event previously uncertain, namely the date of deemed service of the bankruptcy notice upon the applicant. That date is critical as it sets in motion events that may result in the commission of an act of bankruptcy. To seize upon the date on which the applicant received the notice, a date which is known because the applicant admitted it, and thereby retrospectively render certain the date from which an act of bankruptcy may flow would be wrong. I therefore decline to vary the orders of 25 May 1982.
I turn to the question whether the judgment on which the bankruptcy notice is based was a final judgment within the meaning of para. 40(1)(g) of the Act.
The respondent issued notices of assessment to income tax against the applicant for the financial years ended 30 June 1977, 1978, and 1979. The applicant lodged objections against each assessment which the respondent disallowed. Upon the applicant's request the objection for the 1977 year was treated as an appeal and referred to the Supreme Court of New South Wales. That appeal was dismissed for want of prosecution by Hunt J. on 1 March 1982. The applicant appealed to this Court against that decision. The appeal was heard last week by a Full Court of this Court and the decision was reserved, as it still is.
Following the disallowance by the respondent of the applicant's objections in respect of the 1978 and 1979 years of income the matters were referred to a taxation Board of Review and the references are listed for hearing on 13 September 1982.
On 11 March 1982 the respondent obtained judgment against the applicant in the Supreme Court of New South Wales, Common Law Division, in the sum of $334,826.25 being the amount claimed in the bankruptcy notice the subject of this proceeding. That amount is the sum of the income tax and additional tax for late payment claimed by the respondent to be due by the applicant in respect of the financial years 1977, 1978 and 1979 (including provisional tax where relevant) less a credit of $108,829.07 which was recovered by the respondent from a bank and a building society with which the applicant had deposited moneys, pursuant to notices issued by the respondent under sec. 218 of the Assessment Act. The applicant has appealed to the Court of Appeal of New South Wales from that judgment.
There is a considerable body of evidence as to the progress of the appeals and references. I do not propose to refer to this evidence as, in the end, nothing turns on it.
I will summarise the applicant's argument. He submitted that the judgment of the Supreme Court on which the notice was founded is not a final judgment within the meaning of para. 40(1)(g) because it does not finally dispose of the rights of the parties. He relied on
Bozson v. Altrincham Urban District Council (1903) 1 K.B. 547 at p. 548;
Egerton v. Shirley (1944) 2 All E.R. 583;
Hall v. The Nominal Defendant (1966) 117 C.L.R. 423 (at pp. 439 and 440); and
Re Pannowitz; Ex parte Wilson (1975) 6 A.L.R. 287 (at pp. 292-293) as establishing this definition of ``a final judgment''. The applicant then submitted that the Act and the
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Assessment Act must be read together. The Assessment Act entitles the respondent to obtain and enforce a judgment against a taxpayer for tax payable pursuant to an assessment, and it is not open to the taxpayer in that proceeding to challenge the assessment in any way. This can only be done on a reference to a Board of Review or an appeal to the Supreme Court:F.J. Bloemen Pty. Ltd. v. F.C. of T. 81 ATC 4280; (1981) 55 A.L.J.R. 451. If the respondent is entitled to obtain the issue of a bankruptcy notice based on the judgment and in due course obtain a sequestration order against a taxpayer's estate the status of the taxpayer is seriously affected. Bankruptcy would also affect rights and liabilities of the taxpayer, the respondent and third parties. Yet if a taxpayer succeeds in appeals to a Supreme Court or references to the Board of Review the assessment will be altered and the tax paid will be refunded (sec. 202 of the Assessment Act). The foundation of the judgment will be destroyed and the judgment itself can be set aside. Section 202 assumes that the judgment is set aside. The judgment is therefore defeasible. Likewise if a taxpayer succeeds only partially on the appeal the assessment and the judgment may be varied accordingly. Therefore the judgment is not a final judgment. This is in substance the appellant's argument.
It is true that the cases relied on by the applicant, with the exception of Pannowitz to which I shall refer later, concern the question whether a judgment is final; but they did so in different contexts and for different purposes to those presently relevant. The question in Bozson was whether a Court order was final or interlocutory. Lord Alverstone said at p. 548:
``... the real test... ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties?''
In
Salter Rex & Co. v. Ghosh (1971) 2 Q.B. 597, Lord Denning disapproved this test and approved instead a test applied by Lord Esher some years earlier in
Standard Discount Co. v. La Grange (1877) 3 C.P.D. 67 and
Salaman v. Warner (1891) 1 Q.B. 734 namely, that it was the nature of the application to the Court and not the nature of the order which the Court eventually made which determined whether an order of the Court was final.
In
Hall v. The Nominal Defendant (1966) 117 C.L.R. 423 the question before the High Court was whether an order was final under para. 35(1)(a) of the Judiciary Act 1903. Barwick C.J. said (at p. 430) that the order in question in that case was final because it finally determined the matter in dispute. Taylor J. regarded the test propounded in Bozson by Lord Alverstone as providing ``a broad test which is unexceptionable'' (pp. 439-440). Windeyer J. (at p. 444) referred to ``the general proposition that a final order is one which finally disposes (subject only to appeal) of an action or existing dispute between parties''.
In Pannowitz Riley J. applied the tests approved in Hall to determine whether the order before him was a ``final order'' within the meaning of para. 40(1)(g) of the Act.
The question whether a judgment is final has been considered by other cases in contexts more relevant to the present case than Bozson Egerton and Hall. In
Opie v. Opie (1951) 84 C.L.R. 362 the High Court considered whether a judgment entered under sec. 13A of the Deserted Wives and Children's Act, 1901 (N.S.W.) was a final judgment within the meaning of para. 52(j) of the Bankruptcy Act 1924 (the equivalent of para. 40(1)(g) of the Act). Dixon and Williams JJ. said at p. 372:
``Section 52(j) includes final judgments and final orders. Before final orders were included it had been held on numerous occasions that a final judgment on which a bankruptcy notice could be founded was a final judgment obtained in an action by which a previously existing liability of the defendant to the plaintiff is ascertained or established - unless there is something to show an intention to use the words in a more extended sense...''
In
Re Hanby; Ex parte Flemington Central Spares Pty. Limited (1967) 10 F.L.R. 378, Gibbs J. held that although a judgment of a District Court may be set aside under the District Courts Act, 1912 (N.S.W.) on sufficient cause being shown the judgment, until set aside, is a final judgment for the purposes of a bankruptcy notice under para. 52(j) of the Bankruptcy Act 1924.
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Although I do not think anything turns in this case on any distinction between the tests applied in Bozson and Hall on the one hand and Opie on the other hand, I prefer for present purposes to apply the Opie test.
It is necessary to examine the provisions of the Assessment Act touching the question of the finality of the Supreme Court judgment in the present case.
Income tax is due and payable by the taxpayer on the date specified in the notice of assessment as the date for payment not being less than thirty days after the service of the notice or, if no date is so specified, on the thirtieth day after the service of the notice (sec. 204).
Income tax when it becomes due and payable is a debt due to the Queen on behalf of the Commonwealth and payable to the Commissioner in the manner and at the place prescribed (sec. 208).
Tax unpaid may be sued for and recovered in any Court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name (sec. 209).
Subsection 177(1) provides:
``The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and (except in proceedings on appeal against the assessment) that the amount and all the particulars of the assessment are correct.''
In Bloemen, Mason and Wilson JJ. said (at ATC p. 4288; A.L.J.R. p. 456):
``An explicit and, in our view, correct statement of the effect of sec. 177(1) was made by Taylor J. in
McAndrew ([(1956) 98 C.L.R.] at pp. 281-282). For the reasons there expressed his Honour concluded that `sec. 177(1) was intended to make it impossible for a taxpayer, in proceedings other than appeal against it, to challenge an assessment on any ground'. He conceded that the word `excessive' in sec. 190(b) was inappropriate. However, he considered that an assessment `made in purported but not justifiable exercise of a statutory power' could properly be described as `excessive' (p. 282).This interpretation gives expression to the policy which underlies, and is manifest in, the statutory provisions. The effect of this policy is that, once the Commissioner takes advantage of sec. 177(1) by producing an appropriate document, the taxpayer is precluded from contesting that the Commissioner has made an assessment or that in making the assessment he has complied with the statutory formalities. The taxpayer is entitled to dispute his substantive liability to tax in proceedings under Pt. V.
Although sec. 190(b) places the onus on a taxpayer upon a reference or appeal of proving that the assessment is excessive, it enables him to contest his substantive liability to tax. It is then for the board upon a reference or the Court on an appeal, within the framework of the taxpayer's objection, to ascertain whether he is liable to tax and, if so, in what amount. The Pt. V procedures accordingly protect the taxpayer and enable him to have his liability to tax determined.''
Stephen and Aickin JJ. agreed with the reasons for judgment of Wilson and Mason JJ.
The Supreme Court hearing a taxpayer's appeal under Pt. V of the Assessment Act may make such order as it thinks fit and may, by such order, confirm, reduce, increase or vary the assessment (subsec. 199(1)).
Section 201 of the Assessment Act provides:
``201. The fact that an appeal or reference is pending shall not in the meantime interfere with or affect the assessment the subject of the appeal or reference; and income tax may be recovered on the assessment as if no appeal or reference were pending.''
The issues in the proceeding before the Supreme Court which resulted in the common law judgment are essentially different from those in the proceedings for review or appeal under Pt. V of the Assessment Act. The common law judgment
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established the previously existing liability of the applicant to the respondent, and it finally disposed of the rights of the parties on the matters in dispute between them notwithstanding the pendency of the appeal to the Court of Appeal of New South Wales from that judgment leaving other issues to be determined in proceedings under Pt. V.The applicant placed great emphasis on sec. 202 to support his argument; but I do not think that section supports it at all. Rather it supports the argument of the respondent. Section 202 is designed to adjust the financial position of the taxpayer and the respondent following the conclusion of the appeal or reference. Tax is either refunded to the taxpayer or recovered from him depending on the alteration made to the assessment on the appeal or reference. The taxpayer has no right to set aside any common law judgment which may have been entered against him following the conclusion of an appeal or reference in his favour under Pt. V. The judgment may become unenforceable if in the end he succeeds in his appeal. But his right under sec. 202 does not arise until the determination of the appeal or reference under Pt. V. The true character of the right is one of entitlement to a refund. The rights and liabilities arising under sec. 202 are in harmony with the notion of the common law judgment being a final judgment.
In my opinion the judgment entered by the Supreme Court of New South Wales on which the bankruptcy notice is based is a final judgment within the meaning of para. 40(1)(g). This conclusion follows whichever test is adopted as to what constitutes a final judgment.
The bankruptcy notice must be set aside.
In view of my finding it is unnecessary to consider the applicant's submission that, if he fails in his attack on the validity of the bankruptcy notice, an order should be made extending time for compliance with the requirements of the notice until the references to the Board of Review and any appeals arising therefrom have been determined.
The Court orders that bankruptcy notice No. 1905 of 1982 be set aside and that the respondent pay the applicant's costs of the application including any reserved costs.
[ CCH Note: This is the annexed bankruptcy notice referred to at p. 4,351 of Lockhart J.'s judgment. The words in italics below are handwritten in the original notice.]
*Amended pursuant to order of
Court of 25 May 1982
J.P. Hasson 27
--
Deputy Registrar 5
--
82
BANKRUPTCY NOTICE
Bankruptcy Act 1966
BANKRUPTCY DISTRICT OF THE STATE }
OF NEW SOUTH WALES AND THE } No. B. 1905 of 1982
AUSTRALIAN CAPITAL TERRITORY. }
RE: PETER LEOPOLD CLYNE
Judgment Debtor
TO:
- PETER LEOPOLD CLYNE
- SEBEL TOWN HOUSE
- 23 ELIZABETH BAY ROAD
- ELIZABETH BAY IN THE STATE OF NEW SOUTH WALES
CONSULTANT IN MATTERS OF LAW, FINANCE AND TAXATION
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WHEREAS the Deputy Commissioner of Taxation one of whose addresses is Eighth Floor, Centrepoint, 100 Market Street, Sydney (hereinafter referred to as ``the judgment creditor'') has claimed that the sum of $334,826.25 is due by you to him under a final judgment obtained by him against you in the SUPREME COURT OF NEW SOUTH WALES, COMMON LAW DIVISION AT SYDNEY on the eleventh day of March 1982, the said judgment being a judgment the execution of which has not been stayed:
* Twenty-eight
THEREFORE TAKE NOTICE that within fourteen days after service of this notice on you, excluding the day on which this notice is served on you, you are required -
- (a) to pay the sum of $334,826.25 so claimed by the judgment creditor to the judgment creditor
or
- (b) to secure the payment of the sum referred to in the last preceding paragraph to the satisfaction of the Federal Court of Australia or the judgment creditor or compound the sum so specified to the satisfaction of the judgment creditor.
AND FURTHER TAKE NOTICE that if, within the period set out above, you fail either to comply with either of the abovementioned requirements of this notice or to satisfy the Federal Court of Australia that you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (a) of this notice, being a counter-claim, set-off or cross demand that you could not have set up in the action in which the judgment was obtained, you will have committed an act of bankruptcy on which bankruptcy proceedings may be taken against you.
Dated 4th day of May 1982.
J.P. Hasson
Deputy Registrar
NOTE: If you have a counter-claim, set-off or cross demand equal to or exceeding the sum specified in paragraph (a) of this notice, being a counter-claim, set-off or cross demand that you could not have set up in the action in which the judgment was obtained, you may, under sub-section (7) of section 41 of the Bankruptcy Act 1966 within the period set out above, file an affidavit to that effect, giving details of the counter-claim, set-off or cross demand, as the case requires, and the reasons why you were unable to set up the counter-claim, set-off or cross demand, and, if you do so, the time for complying with the requirements of this notice shall be deemed to have been extended until the Court determines whether it is satisfied that you have such a counter-claim or cross demand.
This notice was issued on the application of B.J. O'DONOVAN, Crown Solicitor for the Commonwealth and Solicitor for the Judgment Creditor, whose address for service is 111 Elizabeth Street, Sydney, New South Wales.
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