Case: Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255 ; (1999) 87 FCR 120 
Outcome: discussed
I respectfully consider that the wider construction in Robert Hudson Jnr is to be preferred to the narrow construction in St George . It would appear that the decision in Robert Hudson Jnr was not brought to the attention of the Court in St George , nor does it appear from his Honour's reasons that there was full argument on the question. Accordingly, I would respectfully adopt the reasoning on this point in Robert Hudson Jnr . In doing so, I am conscious that St George was followed by the Federal Magistrates Court in SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625. Once again, however, Robert Hudson Jnr was not cited by the parties or considered by the Court. Furthermore, s 41(5), in contrast to s 306, is not expressed in terms of the existence of a "defect" in a bankruptcy notice. Rather, it concerns whether the amount specified in the bankruptcy notice as due to the creditor exceeds the amount in fact due. Inevitably any overstatement will broadly be for one or two reasons. First, there is an error or errors in one or more of items 1-5 set out in column 2 of the Schedule to the bankruptcy notice. Then, when items 1-5 are added up they produce an excessive total at item 6. Second, there is an arithmetical error in adding up items 1-5. Of course there could be errors of both kinds occurring in the one notice. The intent of s 41(5) is, in my opinion, to consider the question of whether the amount stated is excessive as well as why that is the case. This approach to its construction is consistent with the observations of the Full Court in Seovic at [36] to which I have referred concerning the need for the debtor, when giving notice under s 41(5), to provide sufficient information to enable the creditor to identify the nature of the misstatement. I apprehend that this was intended to mean that information needs to be provided disclosing not just that the amount stated as due is excessive but the reason(s) why that is said to be so. 40 The Full Court in Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255 ; (1999) 87 FCR 120 in obiter set out what, in principle, is required to constitute notice of a "misstatement" for the purposes of s 41(5). In so doing it considered but doubted the correctness of both Re Charles Murray (1959) 18 ABC 152 at 156 upon which the respondent here relies, as well as Re Wilhemsen; Ex parte Gould (1986) 11 FCR 107 at 108. It said at [36]: The expression 'the misstatement' strongly suggests that the debtor must do more than merely assert that there is a misstatement in the bankruptcy notice. The subsection requires the debtor to provide sufficient information in the notice to enable a creditor to identify what is said to be the alleged misstatement. Only then does the debtor's notice displace the general rule established by s 41(5), that the bankruptcy notice is not invalidated only by reason that the sum specified therein as the amount due to the creditor exceeds the amount in fact due. (emphasis in original) The Court continued: The point of the notice is to draw to the creditor's attention the misstatement, thereby giving the creditor the opportunity to consider, for example, whether the bankruptcy notice should be withdrawn and a fresh notice, correcting the misstatement, issued. If the creditor is given no hint in the notice as to the nature of the misstatement, there is a considerable risk that the debtor will be able to take unmeritorious advantage of minor errors (such as the small mistake in the present case) and that unnecessary and wasteful litigation will eventuate. It is no answer to say that the creditor can ask for particulars, since the debtor would not be obliged to give any until after litigation had been instituted. Indeed, a debtor wishing to take advantage of the technicalities of the law of bankruptcy might be well-advised to say as little as possible for as long as possible about the true nature of the alleged misstatement in the bankruptcy notice. The requirement for some specificity did not, the Full Court considered, extend to require the identification of the misstatement with "complete precision" or that the debtor "specify the exact amount of the alleged excess". A debtor's notice should be given a "benevolent construction".