Re Robin Norton

[1991] FCA 896

IN THE FED ER^ COURT OF AUSTRALIA	1	JUDGMENT No. .-!!-?6%.9--
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	1	No. QB 919 of 1986
STATE OF OUEENSmi	1

RE:	ROBIN AND NETTA JOY NORTON
EX PARTE: -	THE B A N K R m

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	5 SEPTEMBER 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THX:

1.    The compostions accepted by the meetings of creditors held on 25 June 1991 be approved.

2.    The bankraptcy of each of the debtors be annulled.

3.    Graham Lindsay Starkey be appointed as the person in whom shall vest the property of the bankrupts at the date of Lhe annullment insofar as that property

vested in the trutee immediately before annulment.

NOTE:  Settlement and entry of orders is dealt with in Rule
124 of the Bankruptcy Rules.

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2 9 1AN 1992

AUSTRALIA PRlNClPAC REOlSTRY

IN THE FEDER& COURT OF AUSTRALIA 1

GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE	) No. QB 919 of 1986
STATE OF OUEENSLAND	)

RE:  ROBIN AND NETTA JOY NORTON

EX PARTE: THE BANKRUPTS

CORAM: PINCUS J.

PLACE! BRISBANE

W: 5 SEPTEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter, an application is made for approval of compositions and an annulment in respect of these debtors. One difficulty which has emerged during the course of the

hearing is that the creditors were initially given to
understand that the composition would produce about 40 cents
in the dollar whereas it now appears that it will produce some

substantially lesser sum.

The answer which may be given is that the creditors were represented or present at the meeting at which the compositions were approved, with one exception, and the exception was not sufficient to produce any result other than
that which ensued, namely, approval.	Related to that problem

is the requirement of s.74(2) of the Bankruptcv Act 1966 that the trustee give notice of the time appointed for the hearing

of this application to each creditor who did not assent. The

relevant creditor, I assume, has not been given notice and Mr have to be proved. I think it does have to be. The question is whether or not it can be overlooked under s.306.

Section 306 requires the Court to treat proceedings

as not being invalidated by a formal defect or an irregularity unless certain circumstances exist. It appears to me that the apparent failure to serve the creditor who did not assent is

an irregularity and that because it could not have made any

difference to the outcome of the meeting it is impossible to

hold that substantial injustice has been caused. Therefore,

although I think that the service on the non-assenting
creditor should have been proved, I think it is capable of

being overlooked under s.306 and I will do that.

The other qdestion is whether there should be an

annulment. The composition is somewhat less than handsome and
the bankruptcy is fairly old now. Nevertheless, the prospect
of getting an annulment is an encouragement to debtors to try

to raise the wind to pay their creditors something of

substance and I think that, although the case is marginal, an

annulment should ensue here.

The orders will therefore be that the compositions

accepted by the meetings of creditors held on 25 June 1991 be
approved: that the bankruptcy of each of the debtors be
annulled; and that Graham Lindsay Starkey be appointed as the
person in whom shall vest the property of the bankrupts at the
date of the annulment, insofar as that property was vested in
the trustee immediately before the annulment.

I certify that the two
preceding pages are a true
copy of the reasons for
judgment herein of his

Honour Mr Justice Pincus

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k ' i h - ~ e c -

Associate

Date 5 SeptemW \??l