Peter A Clarke

In the Federal Court Skouloudis v St George Bank Ltd Edmonds J provides a detailed analysis of the operation of section 41(5) of the Bankruptcy Act 1966. Through it a debtor may set aside a Bankruptcy Notice.

Section 41(5) provides:

(5)  A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.

St George Bank, the respondent. obtained judgment in the sum of $2,176,026.95 plus costs in July 2001.  Skouloudis, the appelllant, repaid $1,788,389 by 2004.  Just before the 6 year bar on issuing a notice on a judgment St George issued a bankruptcy notice for $2,176,026.95.  Skouloudis served a 41(5) notice claiming the Bankruptcy Notice contained an overstatement of the amount because it did not give credit for payments made.

After considering the authorities at length Edmonds J key findings of are:

• an overstatement of the amount actually due in a bankruptcy notice renders it invalid provided the debtor complies with the time constraints in 41(5) (see par [23] – [24]);
• if a bankruptcy is declared invalid that invalidity applies from the date of issue, not from the date it is declared invalid (par [25]);
• It is open for a Court to amend a Bankruptcy Notice prior to the debtor giving notice under section 41(5).  But once the notice is provided and the Bankruptcy Notice is found to be invalid, it is not a notice under the Act and therefore incapable of amendment (see the logical reasoning at [28] – [35]).

The other salient lesson is that the creditor should be wary of issuing a Bankruptcy Notice at a time so proximate to the 6 year limit.

In France a man, Jean – Marie Demange, beats his mistress, shoots her and then himself because he lost a mayoral race.  What is the reaction.  The Parliamentary speaker expresses his profound sadness over this “gesture of despair.” Give me a break! Read the rest of this entry »

Helen Mirren has dipped her toe into the fraught and ever so PC world of rape trials and jury verdicts, if today’s SMH article is accurate.  The report says:

The Oscar-winning actor said lawyers defending men accused of rape preferred a female-dominated jury because “women go against women”. She said this might be due to sexual jealousy.

I don’t do criminal jury work.  Jury selection is mostly art and very little science, at least in Australia.  There are plenty of theories of the type of person makes the best juror for a particular side in a particular case.  There is a view, not shared by all, that female jurors, especially those who are middle aged, lower middle class and either stay at home or with blue collar work, can be very critical of victims in sex assault cases. It is a fraught area to talk about let alone analyse.  Are women tougher on women generally, as Mirren suggests?  I think there is more than an element of truth there.  Read the rest of this entry »

I confess a grudging respect for Fiona Patten.  She has long been fighting the good fight as a lobbyist for the sex industry, the Eros Foundation, a part of the economy which has many consumers but few who advertise the fact.  A lot of drawn results and more losses than wins.  The best that is to be expected is that the industry can minmise regulation.  It is a favourite target for the moral majority types on the conservative side of politics (and a few feminists from the left side of the aisle).  When I worked for Peter Reith he was shadow Attorney General so I had more than a few chats with Robbie Swan from the Eros Foundation.  The big issue was the Senate report on video classification.  While the coalition members on the Committee called for a stronger classification regime the report went nowhere.  Read the rest of this entry »

On Friday the Herald Sun returned to the grubby practice of running unsubstantiated assertions in the allegations into Theo Theophanous. This time the Herald Sun ran a tawdry piece giving Rita Theophanous a free kick to rail against  the complainant and then publishing an open letter.  The allegations are a mish mash of second and third hand beliefs and suppositions.  Read the rest of this entry »

The patented David Stratton myopia about Australian Films is on display in True character comes to light. He describes the main characters thus:

The audience is introduced to members of the group by newcomer Alex (Grant Dodwell), whose life has been ruined because of compulsive gambling. Other members include Lucas (Steve Le Marquand), an uptight, uncommunicative salesman; Cecil (Don Reid), an elderly widower who leads a solitary but ordered existence; Freddy (Steve Rodgers), who is in every sense the most rounded character, a stand-up comic whose wife left him because she found him repulsive and who desperately misses his child; Moses (Paul Tassone), who lives in squalor; and Paul (Paul Gleeson), who organises the gatherings and in whose home the men usually meet. Initially, none of these characters seems to warrant our sympathy. But all that changes as we discover more about them, and this is especially true in the case of Freddy, whose story is a particularly poignant one.

Why oh why wouldn’t you just want to run to the cinema to empathise with this lot. Read the rest of this entry »

Today’s editorial in the Australian is a spot on description of what is wrong with the Australian Film industry.  I was particularly taken with the statement:

Antony Ginnane, the new president of the Screen Producers Association of Australia, however, is only partly right when he says our films are “in the main, dark, depressing, bleak pieces”. He could have said “dark, depressing, bleak pieces … too often obsessed with drug addiction, deadbeats, failure, toilet humour, gay relationships and hokey spirituality.” Mr Ginnane’s general view that “the feature film side of our industry has for some years now almost completely failed to connect with and find an audience” hit the nail on the head. As he told the association’s conference on the Gold Coast: “Nobody goes to see them. If they premiered most of the Australian movies of the past 24 months on a plane, people would be walking out in the first 20 minutes.”

Completely spot on.  Read the rest of this entry »

It was a good day at the office for the plaintiff’s legal team in an interlocutory stoush over the arcania that is a “fair comment defence.”  In Buckley v Herald & Weekly Times the plaintiff’s succeeded in striking out a defence of fair comment.  The plaintiff’s request for further and better particulars was also largely successful.  The defendant’s application for discovery was an honourable draw with the defendant being more successful than not. As usual Kaye J writes with a crispness that one hopes will take off and sweep the bench.

Fair comment Read the rest of this entry »

Remember remember the fifth of November
Gunpowder, treason and plot.
I see no reason why gunpowder, treason
Should ever be forgot…

Guy Fawkes has a lot to answer for. Read the rest of this entry »

In the portentously titled Australia’s best films ignored by public we have another complaint in today’s Age about why Australian’s are staying away in droves from the homegrown products.  Articles like this crop up very 6 months or so.  There is usually an opening wail about the state of the Film industry followed by a call for more funding.  There is very little said about why people flock to US films, of which there are a fair few dreadful examples, and stay away from Aussie offerings. All in all it is a tedious complaint.

Today’s piece starts off by stating that there are all these great independent movies being made but

In a sign of just how much Australia’s independent film industry is struggling, the films nominated for Best Film at this year’s AFI Awards — The Black Balloon, The Jammed, The Square and Unfinished Sky — took just over $3.9 million in combined box office takings

Why won’t people see these movies.  Let’s have a look at them in turn:

• The Black Balloon: Read the rest of this entry »