Daly v Watson

Case [1994] FCA 361

PATRICK MICHAEL DALY v. DANIEL WATSON AND JOAN WATSON
No.G226 of 1994
FED No. 361/94
Number of pages - 11
Bankruptcy
(1994) 128 ALR 309

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
DAVIES(1), BEAUMONT(2) AND GUMMOW(2) JJ

CATCHWORDS

Bankruptcy - creditor's petition - whether affidavit verifying creditor's petition complies with s.47(1)(b) - matters not within own knowledge - source of information and belief not given - other evidence available as proof of petition.


Bankruptcy Act 1966, s.43, s.47(1)(b), s.52(1) and (2), s.306(1)
Bankruptcy Rules, r.12, 132(1)(c)


Re Williams (1968) 13 FLR 10.

HEARING

SYDNEY, 23 May 1994
#DATE 7:6:1994


Counsel and Solicitors Mr. P.R. Clay instructed by
for Appellant: Messrs Dennis Cooney


Counsel and Solicitors Mr. M.R. Aldridge instructed by
for Respondents: Messrs Marshall Marks Kennedy

ORDER

THE COURT ORDERS:
Appeal dismissed, with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DAVIES J I have had an opportunity to read the reasons for judgment prepared by Beaumont and Gummow JJ. I agree with the orders which their Honours propose and, in general, with their reasons for judgment.

  1. Section 47(1) of the Bankruptcy Act 1966 (Cth) provides:-

"A creditor's petition:

(a) shall be in accordance with the prescribed form;

(b) shall be verified by the affidavit of a person who has knowledge of the facts; and

(c) shall be served as prescribed."

In my opinion, a petition which is not verified as required by s.47(1) is liable to be struck out. The section states the requirements for the commencement of proceedings in bankruptcy and should be complied with, as a matter of substance, absent good reason to the contrary.

  1. However, a solicitor may have sufficient knowledge to verify a petition. The term "knowledge" is to be read in the light of well understood practice. It does not denote direct personal knowledge of every issue of fact but rather knowledge of the type which in the past has been thought sufficient to justify a deponent to swear to the truth of the statements in the petition. In my view, it would encompass the knowledge of a solicitor who had been concerned in the matters leading up to the creation of the debt or in the collection of the debt or in legal proceedings to obtain judgment and who was aware of the debtor's residential address and of the fact of non-payment. Knowledge of this type is sufficient knowledge for affidavits verifying petitions and is different from the strict proof which may be required on the hearing of a contested petition.

  2. Thus, in In re Carrara Marble Co (1896) WN 87, which concerned the analogous procedure of a petition for the winding-up of an insolvent company at a time when the rules specified that the verifying affidavits be that of the petitioner, Vaughan Williams J allowed the statutory affidavit to be made by a clerk to the solicitors acting for overseas petitioners. It…

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Details
AGLC
Daly, P.M. v. Watson, D. & Anor [1994] FCA 361 ((1994) 128 ALR 309)
Case
[1994] FCA 361
Decision Date

CaseChat Overview and Summary

In Daly v Watson, the respondent, Daly, filed an appeal against the decision of the primary judge, Watson, which dismissed Daly's application to set aside a bankruptcy order made against him. The dispute centres on the sufficiency of an affidavit provided in support of a creditor's petition under the Bankruptcy Act 1966 (Cth). The matter was heard in the Federal Court of Australia.

The central legal issue in this case was whether the affidavit verifying the creditor's petition complied with section 47(1)(b) of the Bankruptcy Act, which requires that the affiant must state that the matters set out in the affidavit are within their own knowledge, except where the information and belief are stated to be derived from another source. The court had to determine if the affidavit was deficient because it did not specify the source of the information and belief, and if this deficiency could be remedied by other evidence available to support the petition.

The court found that while the affidavit did not explicitly state the source of information and belief, the affidavit was supported by other evidence that was available and sufficient to prove the petition. The court held that the failure to specify the source did not render the affidavit invalid, as the other evidence provided was adequate. The court concluded that the bankruptcy order should stand, dismissing the appeal.

The Federal Court dismissed the appeal and ordered that the costs of the appeal be paid by the appellant, Daly. This decision underscores the importance of ensuring that affidavits in support of creditor's petitions are adequately substantiated, even if they do not strictly comply with the requirements of section 47(1)(b) of the Bankruptcy Act.

Orders

Orders of the court

THE COURT ORDERS:

Appeal dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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