Re Arba, Giovanni Batista v St Martins Investments Pty Ltd

[1982] FCA 62

Re: GIOVANNI BATISTA ARBA
Ex parte: ST. MARTINS INVESTMENTS PTY. LIMITED
SQ. No. 50 of 1982
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Fitzgerald J.

CATCHWORDS

BANKRUPTCY - petition founded on act of bankruptcy committed more than six months before presentation - last day falling on a Sunday - petition presented following Monday.

Acts Interpretation Act 1901, s.36

Bankruptcy Act 1966, s.33(1)(c), s.44(1)(c)

Bankruptcy Rules, rule 202

Re Tavella (1953) 16 A.B.C. 166, followed

McPherson v. Lawless (1960) V.R. 363, approved

HEARING

BRISBANE

#DATE 28:4:1982

ORDER

1. The sequestration petition is dismissed.

2. The debtor pay the petitioning creditor's costs of and incidental to proceedings in this Court on 5 April 1982.

JUDGE1

It is common ground in this matter that the act of bankruptcy on which the petition is founded was not committed within six months before the presentation of the petition. The act of bankruptcy was the failure to comply with a Bankruptcy Notice on or before 24 July 1981. The period of six months after the commission of the act of bankruptcy, within which a petition founded thereon might be presented, expired on Sunday 24 January 1982. The petition was presented on the Monday following.

Miss O'Reilly, in a forceful argument for the petitioning creditor, sought to rely upon s.36 of the Acts Interpretation Act 1901 (Cwlth), Rule 202 of the Bankruptcy Rules, and/or s.33(1)(c) of the Bankruptcy Act 1966 (Cwlth).

However, in my opinion s.44(1)(c), which provides that a creditor's petition shall not be presented against the debtor unless the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition, does not "prescribe or allow" a time for the presentation of a bankruptcy petition by reference to the date of act of bankruptcy, although that may be its effect. Rather, it describes, by reference the date of its occurrence, the act of bankruptcy which may be relied upon. In my respectful view, Re Tavella (1953) 16 A.B.C. 166 is correct and was properly summarised by Sholl J. in McPherson v. Lawless (1960) V.R. 363. His Honour there highlights the different operation of the two views of the provision.

When a petition comes to be presented, the proper approach is simply to look to see whether within the period of six months before that date the act of bankruptcy relied on was committed. If it was not, then one of the essential conditions upon which a creditor may petition is not fulfilled. There is no question of any extension of time.

Accordingly, I dismiss the petition with costs save that I order the debtor to pay the petitioning creditor's costs of and incidental to the proceedings in this Court on 5 April 1982.