Re Prow, J.D. v Ex parte Dalgety Farmers Ltd

[1985] FCA 132

Re: JANICE DIEDRE PROW
Ex Parte: DALGETY FARMERS LIMITED (FORMERLY DALGETY AUSTRALIA LIMITED)
No. QLD PET 641 of 1984
Bankruptcy
5 FCR 233

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.(1)

CATCHWORDS

Bankruptcy - whether petition for a sequestration order presented in time - Bankruptcy Act 1966 s.44(1)(c) - found, that the petition, to comply with s.44(1)(c), must be presented no later than the semi-anniversary of the last day for compliance of the bankruptcy notice.

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

Re Maud (1891) 8 Morr 144

Bankruptcy - Whether petition presented in time - Petition presented on day following expiry of a period of six months following the last day for compliance with a bankruptcy notice - Bankruptcy Act 1966 (Cth), s 44(1).

HEADNOTE

A bankruptcy petition presented on 27 July 1984 in respect of a bankruptcy notice served on 12 January 1984, the last date for compliance with which was 26 January 1984, was not a petition founded on an act of bankruptcy committed within six months of presentation as required by s 44(1) of the Bankruptcy Act 1966 (Cth).

Re Maud (1891) 8 Morr 144; All ER Rep Ext 2054, followed.

HEARING

Brisbane, 1985, April 1, 4. #DATE 4:4:1985
PETITION

Petition for a sequestration order.

J. C. Sheahan, for the petitioning creditor.

No appearance for the respondent.

Cur adv vult

Solicitors for the petitioning creditor: Flower & Hart.

GFV

ORDER

The petition for a sequestration order be dismissed.

Petition dismissed

JUDGE1

This is a petition for a sequestration order, based on a bankruptcy notice served on 12 January 1984. The petition was presented on 27 July 1984.

1. Section 44(1) forbids the presentation of a creditor's petition unless "(c) the act of bankruptcy on which the petition is founded was committed within six months of the presentation of the petition".

2. The question, then, is whether the petition was presented in time.

3. The argument for the creditor was as follows. It was said that the 14 days allowed for compliance with the requirements of the bankruptcy notice expired at the last moment of 26 January 1984. Then, it was urged, since the law ignores fractions of a day, the act of bankruptcy occurred on 27 January and so the petition was presented in time.

4. In my opinion, that is not correct. Re Maud (1891) 8 Morr 144 is clear authority to the contrary. There the bankruptcy notice was served on 20 November 1890 and seven days were allowed for compliance. It was held that the act of bankruptcy was completed at the last moment of 27 November 1890. The petition, which under the (1883) English Statute then being considered, had to be presented within three months, was held to be too late, having been presented on 28 February 1891.

5. I note that Re Maud is cited as authoritative in both the English and the Australian standard bankruptcy texts and I propose to follow it.

6. In summary the petition must be presented, to comply with s.44(1)(c), no later than the semi-anniversary of the last day for compliance with the bankruptcy notice; here the last day for compliance was 26 January but the petition was not presented until 27 July and is therefore too late. The petition is dismissed.