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Growden v Wiltshire

Growden v Wiltshire

Case [1935] HCA 27 9 May 1935

Appeal

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Procedural Fairness

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Insolvency

Civil Procedure

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52 CLR 286

WILTSHIRE Bankruptcy-Bankruptcy motice-Petition-Creditor, a company in liquidation-

Notice and petition in name of liquidator-Amendment to name of company- Liquidator- Whether a creditor in respect of a judgment debt of the company- Bankruptcy Act 1924-1933 (No. 37 of 1924-No. 66 of 1933), secs. 52 (j)* and May 9.

53-Companies Act 1892 (No. 557) (S.A.), sec. 117.*

A bankruptcy notice in the name of the official liquidator of a company was served upon the debtor, who was directed to pay the liquidator the amount owing to the company. Subsequently, a bankruptcy petition was issued in the name of the official liquidator. It was contended that both the notice and the petition should have been issued in the name of the company and not in that of the liquidator. * The Companies Act 1892 (S.A.),

or such time as is prescribed after ser- by sec. 117, provides: "The official

vice of the notice in Australia, or within liquidator shall have power-(1) To

the time limited in that behalf by the bring or defend any action, or prosecu-

order giving leave to effect the service tion, or other legal proceeding, civil or

elsewhere, either comply with the re- criminal, in the name of and on behalf

quirements of the notice, or satisfy the of the company."

Court that he has a counter-claim, * The Bankruptcy Act 1924-1933

set-off, or cross-demand which equals by sec. 52 provides "A debtor com-

or exceeds the amount of the judgment mits an act of bankruptcy in each of the

debt, and which he could not set up in following cases

the action or proceeding in which the has obtained a final judgment or final

judgment or order was obtained order against him for any amount, and

Any person who is for the time execution thereon not having been

being entitled to enforce a final judg- stayed, has served on him in Australia,

ment or final order for the payment of or, by leave of the Court, elsewhere, a

money shall be deemed a creditor who bankruptcy notice under this Act, and

has obtained a final judgment within the debtor does not, within seven days

the meaning of this paragraph."

52 CLR 287

The Court directed that the matter should be remitted to the Court of Bankruptcy for the purpose of amending the petition by substituting the name of the company for that of the official liquidator.

Semble, per Dixon J., that sec. 52 (j) of the Bankruptcy Act does not cover a liquidator and make him a creditor in respect of a judgment debt of

Decision of the Court of Bankruptcy affirmed.

APPEAL from the Court of Bankruptcy (District of South Australia).

An order was made by Piper J. as the result of a misfeasance summons taken out pursuant to sec. 179 of the Companies Act 1892 (S.A.) against Hurtle Clarence Growden and others by Reginald Beecher Wiltshire as the official liquidator of Coo-ee Pictures Ltd. (in liquidation). The order, after declaring the findings,…

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 Growden v Wiltshire

Details

AGLC: Growden v Wiltshire [1935] HCA 27
Case: [1935] HCA 27
Decision Date: 9 May 1935

CaseChat Overview and Summary

This case concerned an appeal from the Court of Bankruptcy concerning the validity of a bankruptcy notice and subsequent petition. The dispute arose when Reginald Beecher Wiltshire, as the official liquidator of Coo-ee Pictures Ltd. (in liquidation), obtained an order against Hurtle Clarence Growden for payment of a substantial sum. Growden failed to comply with this order, leading Wiltshire to issue a bankruptcy notice and subsequently a bankruptcy petition against Growden, both in his capacity as official liquidator. Growden contended that these proceedings were invalid because they were issued in the name of the liquidator rather than the company itself.

The legal issues before the High Court were whether the bankruptcy notice and petition were validly issued in the name of the official liquidator, and whether the order obtained by the liquidator constituted a "final judgment or order" for the purposes of the Bankruptcy Act 1924-1933. Specifically, the court had to consider the effect of section 117 of the Companies Act 1892 (S.A.), which grants the official liquidator power to bring legal proceedings in the name of and on behalf of the company, and section 52(j) of the Bankruptcy Act, which defines acts of bankruptcy in relation to final judgments or orders.

The Court, in its judgment, determined that while the bankruptcy notice itself was a sufficient compliance with the Bankruptcy Act, the petition for sequestration ought to have been presented in the name of the company, not the liquidator. The judges reasoned that the company, not the liquidator personally, was the creditor for the purpose of the petition. However, they viewed the defects as irregularities that could be cured by amendment, rather than grounds for invalidating the entire proceedings.

Consequently, the High Court remitted the matter to the Court of Bankruptcy with directions to amend the petition by substituting the name of the company for that of the official liquidator, and to make any consequential amendments. The appeals were otherwise dismissed.

Orders