ex parte - [1979] FCA 184

CATCHWORDS

Bankruptcy - Bankruptcy petition - Authority of

petitioning creditor to sign petition - Whether

petitioning creditor bound to prove authority -

omnia praesumuntur rite esse acta.

DENIS SPITZER EX PARTE: WELTFLANS AGENCY ESTABLISHMEST

No. P 911 of 1978

LOCKHART J.

8 AUGUST 1979

FEDERAL <;CURT OF

I N T H E FEDERAL COLJXT O F AUSTR4LIA

GENERAL

D I V I S I O N

BANKRUPTCY D I S T R I C T OF THE STATE

No, P 911 of 197,8

O F NEW SOUTH WALES AND THE	1
AUSTRALIAN CAPITAL TERRITORY	1

RE:

D E N I S

S P I T Z E R

EX PARTE:	WELTRANS AGENCY ESTABLISHME1
LOCKHART J.

WHERE MADE:	SYDNEY
DATE O F ORDER:	31 JULY 1979
THE COURT ORDERS THAT:

-	A sequestration order be made against the estate of 'the debtor, and that the costs, including reserved costs, of the

petitioning creditor be taxed and paid according to the Act.

Exhibits may be handed out.

JN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION

BANKRUPTCY BISTRICT OF THE STATE	1 No. P 911 of 1978
OF NEW SOUTH WALES AND THE
1

AUSTRALIAN CAPITAL TERRITORY

RE:

DENIS SPITZER

EX PARTE :

WELTRANS AGENCY EST-4BLISHFIENT

FUCASONS FOR JUDGMENT

This is a petition for seques.tration of the

estate of Denis Spitzer by Weltrans Agency Establishment.

On 26 June 1979 a notice of intention to oppose

the petition was filed by the debtor alleging the following

grounds of opposition:-

"1)	The Petition does not disclose the authority of the purported agent of the Petitioner.

2) The Affidavit of KEITH CfiARLES FLEMING HARRIS sworn on the 26th July 1978 does not disclose the source of authority whereby the Deponent is the "duly authorised agent" of Weltrans Agency Establishment."

The petition is dated 24 July 1978 and was

presented to the court on 1 August 1978. The petition

alleges that the debtor is indebted to it in the sum of

$37,748.89, together with interest, being the amount due

under a final judgment recoverecl in the Supreme Court of

New South Wales on 1 December 1977. The act of bankruptcy

is the failure by the debtor to comp.1~

with the requirements

of a bankruptcy notice served on him on 1 July 1978.

The petition is signed by Keith Charles Fleming

Harris, a solicitor, being a member of the petitioning creditorts Sydney solicitors, Messrs. Cutler, Hughes & Harris. He has purported to sign the petition on behalf

of the petitioning creditor as its duly authorised agent.

The evidence establishes that the petitioning

creditor is a corporation f~rrned

under the laws of

Liechtenstein. It is known under the laws of Liechtenstein

as an Establishment which is a corporation formed under the

statute, in the principality of Liechtenstein, known as the

"20th January 1976 Personen - Und Gesellschaftsrecht" (law

concerning individuals and corpo~ations).

An Establishment is not required by the laws

of Liechtenstein to have any seal or to affix any seal to

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ex parte

Details

AGLC: ex parte [1979] FCA 184
Case: [1979] FCA 184
Decision Date: 31 Jul 1979

CaseChat Overview and Summary

In the case of Weltrans Agency Establishment versus Denis Spitzer, the petitioner sought a sequestration order against the debtor, Denis Spitzer, alleging that he owed a substantial debt of $37,748.89 plus interest. The petition was signed by Keith Charles Fleming Harris, a solicitor acting as an agent for the petitioner, Weltrans Agency Establishment, a corporation formed under the laws of Liechtenstein. The debtor filed a notice of intention to oppose the petition, arguing that the petition did not disclose the authority of Harris to sign on behalf of the petitioner and that the affidavit sworn by Harris did not disclose the source of his authority. The central legal issue was whether the petitioning creditor was obligated to prove that Harris was duly authorized to sign the petition on its behalf. The court considered the laws of Liechtenstein, which permit a document to be signed on behalf of an establishment by someone authorized to do so, typically a director. The court noted that while the Bankruptcy Act does not specifically require proof of an agent's authority, the court's established practice is to require such proof. However, the court may dispense with this requirement if strict adherence to it would only cause unnecessary delay. The court found that while the petitioner had not strictly proved Harris's authority, there was no doubt about the authorization, and the failure to strictly prove it was minor. The court also rejected the argument that the petitioner's failure to lodge certain documents with the Commission of Corporate Affairs should prevent it from relying on the authority of Harris. Ultimately, the court found that the petitioner had provided sufficient evidence to support the granting of the sequestration order against the debtor's estate.

Orders