Chrichton, John v Shaw, George Thomas

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7560 of 1997

BETWEEN:	JOHN CRICHTON & ANOTHER APPLICANTS (PETITIONING CREDITORS)
AND:	GEORGE THOMAS SHAW & ANOTHER RESPONDENTS (DEBTORS)

JUDGE(S):	BRANSON J
DATE:	23 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT (EX TEMPORE)

BRANSON J

John Crichton and Neil Crichton, (“the creditors”), have petitioned the Court for a sequestration order against the estates of George Thomas Shaw and Leila Shaw (“Mr and Mrs Shaw”).  On the hearing of the petition today the creditors are represented by Mr Condon of counsel.  With the leave of the Court, Mr and Mrs Shaw’s son, Mr Thomas Shaw, has made submissions to the Court on his parents’ behalf.  Mrs Shaw is in court although Mr Shaw is not.  I am advised that he is in hospital having undergone an operation.

Subsections 52(1) and (2) of the Bankruptcy Act 1966 (Cth) (“the Act”) provide as follows:

“(1)     At the hearing of a creditor’s petition, the Court shall require proof of:

(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)service of the petition;  and

(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters may make a sequestration order against the estate of the debtor.

...

(2)      If the Court is not satisfied with the proof of any of those matters, or is

satisfied by the debtor:

(a)that he is able to pay his debts;  or

(b)that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.”

Mr and Mrs Shaw, on 1 July 1997, filed a notice of intention to appear at the hearing of the petition.  Such notice indicated that the petition would be opposed on the ground that neither the bankruptcy notice upon which the creditors’ petition is based, nor the creditors’ petition itself, were validly served on Mrs Shaw.  On 7 August 1997, Registrar Quinn conducted a hearing at which witnesses, including Mr and Mrs Shaw, gave evidence concerning the validity of the service upon them of the bankruptcy notice and the petition.

On 26 September 1997, the Registrar delivered reasons for decision. She concluded that the bankruptcy notice was validly served for the purposes of the Act on both Mr and Mrs Shaw. She further concluded that, although the service of the petition may have been defective in that it was placed under the windscreen wiper of the car rather than handed to Mr and Mrs Shaw, such defective service was curable as no prejudice or injustice had been suffered by Mr and Mrs Shaw. The Registrar further concluded that the creditors’ petition was not itself defective. Indeed, Mr and Mrs Shaw had not suggested, as I understand it, that it was. The Registrar dismissed the opposition to the creditors’ petition insofar as…