BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF OUEENSLAND )
RE: GEOFFREY WILLIAM LAW
EX PARTE:
JEAN CALDERWOOD McLEAN
DATE OF HEARING:
6 May 1986
DATE JUDGMENT DELIVERED
:
9 May 1986
COUNSEL :
. for the debtor
No appearance
. for the credltor
Mr. J. Lee instructed by Walker
and Walker
J. A. LYONS
ASSOCIATE TO PINCUS J.
9 May 1986
C A T C H W O R D S
BPAKRUPTCY - creditor's petltion - no court named in
title - whether
fatal.
Bankruptcy Act, 1966 s.306(1)
Re: Geoffrev Willlam
Law
Ex Parte: Jean Calderwood McLean
QLD F235 of 1986
FINCUS J.
BRISBANE
9 May 1986
I N THE
FEDERAL
COURT
OF AUSTRALIA
)
GENERAL DIVISION
)
QLD P235 of 1986
BANKRUPTCY DISTRICT OF THE
SOIJTHERN
)
DISTRICT O F THE
STATE
O F QUEENSLAND )
RE:
GEOFFREY WILLIAM LAW
EX
PARTE:
J E A N CALDJZRWOOD McLEAN
MINUTES OF ORDER
JUDGE
MP-K I N G ORDER :
PINCUS J.
DATE OF OFDER:
9 May 1986
WHEFE
MBDE
:
BRISEANE
THE COURT OPD'ZPS THAT:
A sem2uestration
order aqalnst the estate
of the debtor
be
made and the petltlonlng creditor's costs
of
and
incldental
to
this
petltlon
be
taxed
and
paid
in
accordance wlth the Act.
N O T E :
Settlement and entry
of orders is dealt wlth I n Order 36
of the Federal Court, Rules.
IN THE FEDERAL COURT OF AUSTRALIA
)
GENERAL DIVISION
)
QLD P235 of 1986
BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND )
RE: GEOFFREY WILLIAM
LAW
Ex PARTE:
JEAN CALDERWOOD McLEAN
PINCUS S.
9 MAY 1986
EX TEMPORE REASONS FOR JUDGMENT
Thls 1s a credltor's petition for
a sequestratlon order.
Mr. Lee
of counsel, for
the petltloner, has
satlsfled me that,
wlth
one posslble exceptlon, the apparent deficiencies in the
papers are able to be dealt wlth under s.306(1) whlch provides:
"Proceedmgs under this Act are not invalldated by
a
formal defect or
an irregularlty, unless the court
before whlch
the objection on that ground is made
is of
opinion that substantial
in~ustlce
has been
caused by the defect or irregularity and that the inlustice cannot be remedied by an order of that
court.
"
The posslble exception
is that the credltor's petltlon
has the
wrong title; it does not mention the name
of the petltioner, but,
more lmportantly in
my
view, does not mention the name
of any
court. Since the name
of the petitioner appears prominently
immedlately under the name of the
debtor, it does not appear that
the former deflciency is of any consequence, but the absence of
2 .
the
name of the
Court
appears
to
me
a matter
requiring
consideration.
The test which s.306(1) propounds is simply
Justice,
that is, the Court must overlook the defect or irregularity
s o
form unless it is
of opinion that substantlal injustice has been
caused which cannot be remedied.
It seems to me that the defect
is one
as to form,
not substance, although I initlally had some
doubt about that
sub~ect.
Sectlon 47(l)(a) requlres that a credltor's petition be
in the prescribed
form,
and that prescription
1 s made by rule
1 2 ( 2 ) , which refers
to
form 5.
That form
has not ltself any
title, but immedlately under the heading "Credltor's
Petition"
has the word
"tltle" in brackets, and that is in my
view a
reference back to form
1
whlch requires that the name
of the
court be In the title immediately under the words "Bankruptcy
Act"
.
The body of thls petitlon makes
no reference to the name
of the court, but the document contains a notice in form
6 which
informs the debtor that the petition will
be
heard "At
the
Federal Court of Australia, Level 8 , MLC Court,
15-23 Adelalde
Street, Brlsbane."
In James v. Deputy Commissioner of Taxation (1957) 97
C.L.R. 23 at
p.31, the
High Court touched on
a
similar point.
3 .
There, an order was made which purported to be one of "The Court of Bankruptcy, District of Southern Queensland". It was pointed
out by the
High Court that
no such court
as the Court of
Bankruptcy, District
of Southern Queensland existed, but it was
not, as I read the case, determined whether the mlsdescription
of
the court was fatal in itself. In Pillai
v.
Comptroller of
Income Tax
(1970) A.C.
1124,
the Privy Council had to consider
leglslatlon of
the Federatlon of Malaysia which requlred that a
bankruptcy notlce be expressed to be lssued by the Chlef Justlce
of
the High Court, Issuing
the
same
in
the
name
of Yanq
di-Pertuan Agong. The notice in questlon was slmply expressed to
be lssued by the
High Court.
The Privy Councll was
plamly
concerned that the effect had some constltutlonal slgnificance.
Nevertheless, lt was held to
be a "formal defect or Irregularity"
wlthin the meanlng of the Malayslan bankruptcy leglslatlon. It
appears
to
me
that
the Plllal case 1 s authorlty
that a
substantlal mlsdescriptlon of the issuing
~udlclal
authorlty is
not fatal to the valldlty
of a bankruptcy notlce, and It tends to
support the
vlew that the absence
of reference in the title to
any court may not be fatal. On
the other hand, it was held in
re A Debtor (1951) 1 Ch.
313, referred to In Plllal's case, that
a bankruptcy notlce headed In the name
of a county court from
which It was not issued, although bearing the seal of the court
from whlch it was issued, was Invalld.
I am concerned here with
a petition and not a notice.
It does not seem that the question which was regarded
s decisive
4 .
L .
in the two cases lust mentioned can determine this
case; that
question was whether the defect
was likely to mislead the debtor.
I think that, whether or not it was likely
to
mislead anyone,
this petition is bad unless it is clear
on the
face of it that
the document is one instituting proceedings in this court.
Although with
some hesitation, I have
come to the view
that it is not outside the scope of s.306. In doing so, I have taken into account the fact that the petition not only has the note referred to above, but it bears the court's stamp.
I am therefore of the view that
the defect In question
cannot be held fatal and
I wlll make a sequestration order.
Details
AGLC
Rhone-Poulenc Agrochimie SA v Uim Chemical Services Pty Ltd [1986] FCA 218
Case
[1986] FCA 218
Decision Date
CaseChat Overview and Summary
The case of Rhone-Poulenc Agrochimie SA v Uim Chemical Services Pty Ltd involves a creditor's petition for a sequestration order against the debtor, Geoffrey William Law, filed by Jean Calderwood McLean. The primary issue before the court was whether the creditor's petition contained fatal defects, particularly the absence of the court's name in the title of the petition. The court was required to determine if these deficiencies rendered the petition invalid under the Bankruptcy Act, 1966, section 306(1).
The court addressed the argument that the omission of the court's name in the title of the petition might invalidate the proceedings. However, the court relied on the principle that proceedings under the Act are not invalidated by formal defects or irregularities unless substantial injustice has been caused, which cannot be remedied. The court noted that while the petition did not explicitly mention the court's name in the title, it did bear the court's stamp and contained a notice specifying the location of the hearing. The court found that the petition was clear on its face as a document instituting proceedings in the Federal Court and that the absence of the court's name in the title did not cause substantial injustice. Consequently, the court decided that the defect was not fatal and granted the sequestration order as requested.
The court ordered that a sequestration order be made against the estate of the debtor, Geoffrey William Law, and that the petitioner's costs of and incidental to this petition be taxed and paid in accordance with the Act. This decision underscores the court's willingness to overlook minor formal defects in creditor's petitions, provided the substance of the proceedings remains clear and no substantial injustice results.