Growden v Wiltshire

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.