Taylor, Re D.R. Ryan, Ex Parte J.C.

[1986] FCA 401

Re: DESMOND ROBERT TAYLOR
Ex parte: JAMES CONRAD RYAN
No. QLD PET716 of 1986
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - unsigned creditor's petition bad.

Bankruptcy Act 1966, ss. 47(1)(a), 306

HEARING

BRISBANE

#DATE 15:9:1986

ORDER

The creditor's petition presented on 4 July 1986 be dismissed.

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

JUDGE1

This is a creditor's petition under the Bankruptcy Act with an unusual defect; it is not signed. The authorities suggest that irregularities in the signing of a petition should be rather leniently treated: see, for example, Re Marsden; Ex parte E.H. Sellers and Sons Ltd. (1921) 91 LJCh 318, 126 LT 408 Section 306 of the Bankruptcy Act obliges the Court to treat any formal defect or irregularity as not invalidating "unless the Court . . . is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of that Court".

1. I think that no substantial injustice has been caused; the unsigned petition is annexed to a verifying affidavit properly executed by the petitioning creditor. The question then, so far as s. 306 is concerned, is whether the non-signature of the petition is a formal defect or irregularity.

2. Rule 195 takes a slightly different approach to the problem of procedural errors, but is inapplicable here because r. 195 applies only to non-compliance with the Rules. The requirement that the petition be executed derives from the Act: s. 47(1)(a) requires that a creditor's petition be in accordance with the prescribed form, and that form (No. 5) includes provision for signature. The requirement of adherence to the form is repeated in the Rules (r. 12(2)), but that does not mitigate the effect of non-compliance with the Act.

3. I am thus concerned only with the application of s. 306. It requires that one have regard to the distinction between nullities and irregularities; an example of its application is to be found in In re Pritchard Deceased (1963) Ch 502 That case (which brought about a change in the English Rules - see Harkness v. Bell's Asbestos and Engineering Ltd. (1967) 2 QB 729 at p.734) was one in which a summons was issued out of a district registry instead of out of the central office, as the Rules required. The Court of Appeal held that it was a nullity; in the judgment of Upjohn L.J. with whom Danckwerts L.J. agreed, he said at p. 523 that the authorities established some classes of nullity, one of which was "proceedings which have never started at all, owing to some fundamental defect in issuing the proceedings".

4. The question is whether a document purporting to be a petition, but signed by no one, is a nullity.

5. In favour of the petitioning creditor, there is the fact that the Act does not specifically attach significance to execution of the petition. What is critical is that it be presented and, of course, the date of presentation has everyday importance for the purposes of s. 122. The notion of presentation was analysed by the Full Court in Purden Pty. Ltd. v. Registrar in Bankruptcy (1982) 64 FLR 306; it means handling or delivering the petition to the appropriate court officer and acceptance of it by him.

6. To my mind, the most cogent argument against the validity of this petition is that courts have, on a number of occasions, troubled to determine whether or not deficiencies in execution were fatal. A recent example is the decision of Lockhart J. in Re Spitzer; Ex parte Weltrans Agency Establishment (1979) 25 ALR 447 It would hardly have been necessary to consider that question if it was thought that a completely unexecuted petition could be good. The only direct authority on the point which I have noted is in Re Barry (1862) 1 W & W (IE & M) 174, in which Chapman J. held that a petition for sequestration not signed by the petitioning creditor could not be amended.

7. On the whole, I think I should hold that the failure to sign the petition is neither a formal defect nor an irregularity and s. 306 therefore does not apply. The petition will be dismissed.