Rhone-Poulenc Agrochimie SA v Uim Chemical Services Pty Ltd

[1986] FCA 218

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	) QLD P235 of 1986
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.