Re Wottke, W. v Ex parte Mr Carpet (Sales) Pty Ltd

[1991] FCA 231

JUDGMENT No. 23r / ........ .... 91

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE STATE	) P 3147 of 1990
OF NEW SOUTH WALES AND THE	1 B 3142 of 1990
AUSTRALIAN CAPITAL TERRITORY	1

RE:  WOLF WOTTKE
Debtor

EX PARTE:  MR CARPET (SALES) PTY LIMITED

Creditor

CORAM: Burchett J.

PLACE: Sydney

DATE : 16 April 1991	RECEIVED
-3MAY1991 1 7
FEDERAL COURT OF I

EX TEMPORE REASONS FOR JUDGMENT	AUSTRAUA
PRINCIPAL i
REGISTRY

BURCHETT J.:

I have a number of applications before me in this matter. The first was for leave to file a notice of intention to oppose the petition. This undoubtedly should have been filed some time ago and it was prepared hastily in counsel's handwriting this morning. As a result of that haste it does not cover all the matters that argument revealed are desired to be raised, so I think what I should do is permit it to be filed and indicate that a further document ought to be filed that sets out, fully and accurately, the matters intended to be raised, that is to say, that includes the additional ground, which emerged in argument that the debtor says that he is in fact able to pay his debts as and when they fall due. I direct that any further notice of intention to oppose the

petition be filed and served within seven days.

I also have an application made on behalf of the petitioning creditor to permit amendment of the petition to substitute, for a reference in it to one bankruptcy notice and the failure to comply with it, a reference to a second bankruptcy notice and the failure to comply with that. It was accepted by counsel for the debtor that there were in fact two successive bankruptcy notices served, and that the non- compliance with the first had occurred at a date which resulted in the time for filing a petition expiring prior to

. -

the presentation of the petition.

It seems to me that the circumstances raise a plain inference, which the petitioning creditor asked me to draw, that, in error, a reference was made to the wrong bankruptcy notice, when the second had been served for the very purpose of justifying a petition upon its not being complied with. I invited counsel for the debtor to suggest any other inference which could be drawn, and he was unable to do so, although he contended that I should not, in the circumstances, draw that

circumstances I consider that S. 33(l)(b) of the Bankru~tcy	inference. It seems to me plain that I should, and in those
Act 1966 permits the allowance of the amendment which is
sought. I do not think it is necessary to resort to S. 306, although it may be that section provides some support for the allowance of the amendment. At any rate, it does provide support for the taking of the view that the legislature, in passing a Bankruptcy Act which includes S . 306, did not intend
S. 33 to be construed in any restrictive manner.
But counsel for the debtor relied upon the provisions of S. 44, and in particular upon the proposition that under that section it is mandatory that a creditor's petition shall not be presented against a debtor unless the act of bankruptcy, on which the petition is founded, was committed within six months before the presentation of the petition. He said that in this case the petition offended against that requirement. It seems to me that, it belng acknowledged that at the time the petition was presented the second bankruptcy notice had been issued and served and non-compliance had occurred, and an act of bankruptcy had accordingly been committed - all before the presentation of this petition, and all still available to constitute an act of bankruptcy for the purposes of this petition - and since I have drawn the inference I have already mentioned that that was indeed the intention, the allowance of the amendment in no way offends against S. 44. It simply corrects or regularizes a mistake or irregularity in the expression of a petition which, subject to the correction of that mistake fully complies with S. 44. Accordingly, I allow
the amendments of the petition, and the dates may be substituted in the petition which are set out in the affidavit
of Mr Keller of 25 January 1991, which was, I was informed by counsel for the debtor, served with the petition.
I have been asked to adjourn the petition on the footing that the debtor has issued an application, and obtained a date for its hearing in the District Court, for the setting aside of the judgment on which the petition is founded. That is opposed, but it seems to me that it is appropriate that once the issue is raised, even though very belatedly, the question whether the judgment is to stand ought to be determined in the court which gave it. Accordingly, I will adjourn the petition, but subject to the condition that the debtor serve the application and affidavit or affidavits in support within seven days, and that he pursue his application with the utmost expedition, and within seven days file and also serve an application for expedition of its hearing and thereafter pursue the application with as much expedition as the practice and procedures of the District Court permit. On these conditions, I adjourn the matter to 19 July, but I grant liberty to apply for its restoration to an early hearing date on seven days notice, and I indicate that that is done to enable the petitioning creditor to bring the matter back promptly, if the conditions are not complied with upon which the adjournment was granted. I also order that the debtor pay all costs thrown away by reason of the adjournment.
I direct that the petitioning creditor's solicitor may attend at the registry to have those amendments noted in red ink on the petition. That should be done within 14 days.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment

herein of his Honour Mr Justice Burchett.

Associate

Dated: 16 April 1991