ex parte

[1979] FCA 167

C .c .,a, .. .

--A-.,~&&; &&p- *

/ JUDGMENT

BY LOCIWLRT J.	NSW 302 of 1978
Re W M O N D LYELL LOW

ex parte The Official Receiver in Bankruptcy

HIS EIONOUR :

This is an application made by the Official Receiver

for a declaration that Raymond Lyell Low became

bankrupt on 2 May 1978 by force of section 55 of the

Bankruptcy Act 1966 ("the ~ct") following the

"

presentation on 2 May 1978 of his own petition.

On 2 May 1978 Mr. LOW in fact presented a document

described as a debtor's petition, to the Registrar which

conforms with the usual requirements of a debtor's

petition save that it was not-signed by him nor was it

dated. The petition bears a notation .in the usual space

provided at the foot thereof that it was presented on

2 May 1978 and accepted that day at 2. 55 o'clock in the

afternoon. It is signed by a deputy registrar, Jenkin

Griffith Thomas.

(continued on page 2)

LS/VMD/	1 b
LOW

On the sarne day, and at the same time, the

presentation of the petition was accompanied by a document

described as, "Affidavit Verifying Statement of Affairs" and

a ,document described as, "Statement of Affairs". In fact,

the two are in truth part and parcel of the one document.

The affidavit verifying the statement of affairs was not

signed or sworn by Mr. Low. The statement of affairs

was in fact made out in Mr. Low's handwriting to a large

degree but there is evidence before me that it bear= certair

. -

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other handwriting which is immaterial to the applScation

before me. The handwriting which appears on the document

described as, "Debtor's Petition'l is in most respects in

Mr. Low's handwriting.

The registrar, upon the presentation of the

petition accompanied by the statement of affairs

together with the document described as !'Affidavit

Verifying Statement of Affairst1, considered the

document and, I am satisfied on the evidence, reached

the conclusion that they appeared to him to be in

accordance with the prescribed form. The prescribed

forms are form 9 in the case of a debtor's petition

and form 1 1 in the case of a statement of affairs.	Form
10 is the form of affidavit verifying a statement of

affairs. The relevant rule is rule24. Being satisfied

with the petition and the statement of affairs, the registr

accepted those documents and then endorsed the petition in

. the manner I have already indicated.

LOW

The question that arises for determination is

l

.

whether the absence of the debtor's signature to the petition and the absence of the date thereon and the absence of the swearing of the affidavit verifying

the statement of affairs by Mr. Low operates to prevent

there having been a bankruptcy of Mr. Low on 2 May 1978,

or, indeed, at any time. I I.

Mr. Low, although present in court, has not given

evidence but has stated, frankly, to me from the body of the

court that at the time he attended the registry

with the petition and the documents he intended to take

.

the necessary steps to have himself made bankrupt, as he

was then insolvent. He held the view at all times thereafter

until 21 August 1975 that he was in truth a bankrupt having

been made bankrupt on 2 May 1978. It was on 21 August 1978

that doubt was cast in his mind as to whether or not he was

a bankrupt by reason of what was said to him by a deputy

registrar in bankruptcy that day, prior to the commencement

of his public examination which had been listed for that day.

Mr. Low says to me today that he does not wish to be

a bankrupt and would prefer that it be said he was

not made bankrupt on.2 May 1978 but he, in essence, abides

the order of the court.

There is no doubt, on the evidence before me, that sinc

2 May 1978 Mr Low had conducted himself in every material. res

pect as if he were a bankrupt the source of his bankruptcy b c

DW/KS/~~

LOW . -

the presentation nf his own petition on 2 May 1978.

I need not refer to that evidence in detail. It is

fully set forth in the affidavits which have been read

and relicd on by Mr Urquhart who appears for the

Official Receiver.

Section 55 of the Act provides that:

A debtor may present to the Registrar a

petition against himself accompanied by

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a statement of his affairs verified by . .. . .

I.

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affidavit.

(2) The petition and statement of affairs

shall each be in accordance with the

prescribed form.

Sub-section 3 of that section-provides:

i

If the petition and the statement of

affairs each appears to the Registrar

to be in accordance with the prescribed

form or the Court, in pursuance of the

next succeeding sub-section, directs the

Registrar to accept the petition and

statement -

(a) They shall be accepted by the

Registrar, who shall endorse the

petition accordingly; and

(b) Thereupon by farce of this section

the debtor becomes a bankrupt by virtue

of the presentation of the petition.

Sub-section 11 provides that:

DW/KS/~~	4
Low

If either the petition or the statement of

affairs appears to the Registrar not t3 be

in accordance with .the prescribed form,

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. dither shall be accepteda by the Registrar

'unless the Court, upon reference by the

Registrar directs him to accept them.

Sub-section 5 provides:

Where a debtor becomesabankrupt by force of this section, the Registrar shall forthwith give notice of the bankruptcy

to the official receiver.

Sub-section 8 provides:

A person who becomes a bankrupt by force of this section continues to be bankrupt

l	until one of three events occur:-
(a) He is discharged by force of
section 149 of this Act;
(.b) He is discharged by order of the
Court; or
(c) His bankruptcy is annulled. . .
The last mentioned source ofcessation of bankruptcy

is critical to the resolution of the question before me.

Section 154 of the Act provides so far as relevant.as

- follows:

154(1) Where the court is satisfied -

(a) That a sequestration order ought not

to have been made or, in the case of a

debtor's petition that the petition ought

not to have been presented oy ought not

to have been accepted by the Registrar, the

court m a y make an order annulling the bankruptcy.

DW/I<S/ 4b 5 3 1 / 7 / 7 9

Low

In my opinion, paragraph (a) of sub-section (1)

of section 154 postulates that there is a valid

1

bankruptcy on foot where a petition was presented by

the debtor, provided that it appeared to the Registrar

that the petition and the statement of affairs were

in accordance with the prescribed form and that he

thereupon accepted those documents. One cannot read

section 154 (1) (a) independently of section 55 (3)

They must be read together and, in my opinion, they

I . -

may be read together harmoniously. rt

It is not a condition precedent to the commence-

ment of a bankruptcy initiated by the presentation by

a debtor of his own petition that the petition-and the

statement of affairs necessarily are in accordance

with the prescribed form. The statute eschews

that test and provides that it is the formation by

the ~ e ~ i s t r a r of his opinion that the petition and

statement of affairs appear to be in accordance with

the prescribed forms that generates the necessary - .

statutory consequences of acceptance by the Registrar

and bankruptcy. Those are the clear words of sub-

section (3) of s. 55.

It follows, from what.1 have said, that if, in

I

fact, the Registrar has acce~ted a petition and a

statement of affairs which appeared to him to be in

accordance with the prescribed form, but in truth were

not, there is a valid bankruptcy on foot; but it affords

to the bankrupt a ground for applying for annullment

of the bankruptcy. .

DW/XS/~~ 6

LOW . -

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In these circumstances, in my opinion,

as the requisite opinion was formed by the Registrar

for +he purposes of sub-section (3) of section 55 and he

has accepted ,the necessary documents, namely, the petition

and the statement of affairs, and he had endorsed the petition accordingly,it follows that Mr. Low was made bankrupt on 2 May 1978.

I reach this conclusion notwithstanding that the

- strongest point which may be put against Mr. Urquhart's

- .

submissions is that a document cannot be a petition under

S. 55 unless it is signed by the petitioner and that an .

affidavit verifying a statement of affairs cannot be such un!

it is at least sworn by the deponent.

Accordingly, I declare that Raymond Lyell Low

' of 46 Belleme Street, Blacktown, New South Wales,

accountant, became bankrupt on 2 May 1978 by force of

.K section 55 of the Bankruptcy Act, 1966, by virtue of the

presentation on 2 May 1978 of a petition against himself.

I make no order as to costs.

DI{/KS/ 6b

LOW