Gray, A v Deputy Commissioner of Taxation Gray, J. v Deputy Commissioner of Taxation

[1993] FCA 405

ALAN GRAY and JULIE GRAY
Ex parte: DEPUTY COMMISSIONER OF TAXATION
No. NP4408-4409 of 1992
FED No. 405
Number of pages - 2
Bankruptcy
(1993) 115 ALR 638

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES
GENERAL DIVISION
Davies J(1)

CATCHWORDS

Bankruptcy - petition for sequestration of estate - whether filed in time.

Bankruptcy Act 1966 (Cth) - s.44(1)

Acts Interpretation Act 1901 (Cth) - s.36(1)

In Re Hanson; Ex parte Forster (1887) Bankruptcy Reports 98

Re Maud; Ex parte Townsend (1891) All ER Rep 2054

In Re Dawes; Ex parte Official Receiver (1897) 4 Mans 117

Re Prow; Ex parte Dalgety Farmers Ltd (1985) 5 FCR 233

HEARING

SYDNEY, 11 May 1993

#DATE 8:6:1993

Solicitor for Petitioning Creditor: Mr M. Walsh of

Australian Government Solicitor

Solicitor for Debtors: Mr G.A. Salier of Ternes and Salier

ORDER

THE COURT ORDERS THAT:

1. The estates of the debtors be sequestrated.

2. The costs of the petitioning creditor including any reserved costs be paid out of the debtors' respective estates.

N.B. Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

DAVIES J These are petitions for the sequestration of the estates of Alan Gray and Julie Gray. Mr M. Walsh, solicitor, appeared for the petitioning creditor and Mr G.A. Salier, solicitor, appeared for the debtors. An issue which has arisen is whether the petitions, which were filed on 22 December 1992, were filed within six months of the act of bankruptcy, which in each case was the failure by the debtor on or before 22 June 1992 to comply with the requirements of a bankruptcy notice which had been served.

1. Section 44(1) of the Bankruptcy Act 1966 (Cth) provides, inter alia:
   

"A creditor's petition shall not be presented against a debtor unless -

...

(c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition."

1. In making this computation, reference must be had to s.36(1) of the Acts Interpretation Act 1901 (Cth) which provides:-
   

"Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any

purpose, the time shall, unless the contrary intention

appears, be reckoned exclusive of such day or of the day of such act or event."

1. Once the day of the presentation of the petition is excluded from the computation, it seems clear that the act of bankruptcy occurred within a period of six months prior to that date. This was so held in In Re Hanson; Ex parte Forster (1887) Bankruptcy Reports 98, in which the issue was whether, the act of bankruptcy having been committed on 13 August 1986 and the petition having been filed on 13 November 1986, the petition had been filed within the period of 3 months then allowed. As Mathew J, with whom Cave J agreed, said at 99:-
   

"The filing of the petition is the fixed point, and in

calculating the 3 months, the day on which such a petition is filed must be excluded."

The Court held that the petition was presented in time. Subsequently, in Re Maud; Ex parte Townend (1891) All ER Rep 2054, in which the act of bankruptcy had occurred on 27 November 1889 and a petition had been presented on 28 February 1990, it was held that the petition was out of time for the last day of the three months period expired on 27 February 1990. In In Re Dawes; Ex parte Official Receiver (1897) 4 Mans 117, Vaughan Williams J likewise applied in Re Hanson and held that, as the act of bankruptcy had occurred on 29 June 1986 and the petition had been presented on 29 September 1896, the petition had been presented within the 3 months period. His Lordship held that the day of presentation of the petition had to be excluded. In Re Prow; Ex parte Dalgety Farmers Ltd (1985) 5 FCR 233, Pincus J took a view similar to that expressed in Re Maud and held that in a case where the act of bankruptcy had occurred on 26 January 1984, a petition presented on 27 July 1984 was one day out of time.

1. In accordance with those authorities, the petitions were within the period of six months from the act of bankruptcy. However, in Re Lou Moss; Ex parte Tyaraf Pty Ltd (Morling J, unreported, 23 August 1985), it was held that, where the act of bankruptcy occurred on 24 October 1984, a petition presented on 24 April 1985 was out of time. But this decision appears to have been per incuriam and the decisions I have cited were not referred to.

2. In the light of the authority on the point and the express terms of s.36 of the Acts Interpretation Act, the petitions were presented in time.

3. In this circumstance, and on my rejecting an application for an adjournment which Mr Salier made to me, Mr Salier conceded that sequestration orders must be made. As I am satisfied that all matters which the Bankruptcy Act requires to be proved have been proved, I shall therefore order that the estates of the debtors be sequestrated and that the costs of the petitioning creditor including any reserved costs be paid out of their respective estates.