HIS HONOUR: ME See a ERT OA SORE A SOON SORT EOE weed BY BY 174 ; | 64 / 19749 / . JUDGMENT Y K woe at 14 +? BY LOCKHART J. . NSW 302 of 1978 Re RAYMOND LYELL Low ex parte The Official Receiver in. Bankruptcy s . This is an application made by the Official Receiver for a declaration that Raymond Lyell Low became bankrupt on 2 May 1978 by force of section 55 of the Bankruptcy Act 1966 ("the Act") following the presentation on 2 May 1978 of his own petition. On 2 May 1978 Mr. Low in fact presented a document Gescribed as a debtor's petition, to the Registrar which "conforms with the usual requirements of a debtor's petition save that it was not-signed by him nor was it dated. The petition bears a notation in the usual space provided at the foot thereof that it was presented on 2 May 1978 and accepted that day at 2. 55 o'clock in the afternoon. It is signed by a deputy registrar, Jenkin Griffith Thomas. (Continued on page 2) Ls/vMD/1b a 31/7/79 | LOW | ) , | . A On the same day, and at the same time, the presentation of the petition was accompanied by a document described as, "Affidavit Verifying Statement of Affairs" and . a document described as, "Statement of Affairs", In fact, the two are in truth part and parcel of the one document. The affidavit verifying the statement of affairs was not signed or sworn by Mr. Low. The statement of affairs was in fact made out in Mr. Low's handwriting to a large degree but there is evidence before me that it bears certair other handwriting which is immaterial to the application before me. The handwriting which appears on the document described as, "Debtor's Petition" is in most respects in Mr. Low's handwriting. | The registrar, upon the presentation of the petition accompanied by the statement of affairs together with the document described as "Affidavit Verifying Statement of Affairs", considered. the document and, I am 'satisfied on the evidence, reached the conclusion that they appeared to him to be in accordance with the prescribed form. The prescribed forms are form 9 in the case of a debtor's petition and form 11 in the case of a statement of affairs. Form 10 is the form of affidavit verifying a statement of affairs. The relevant rule is rule24, Being satisfied ' with the petition and the statement of affairs, the registr accepted those documents and then endorsed the petition in the manner I have already indicated. DW/KS/1b _ , 2 ° 31/7/79 LOW 28S The question that arises for determination is whe ther the absence of the debtor's signature to the petition and the absence of the date thereon and the absence of the swearing of the affidavit verifying the statement of affairs by Mr. Low operates to prevent there having been a bankruptcy of Mr. Low on 2 May 1978, or, indeed, at any time. . Mr. Low, although present in court, has not given evidence but has stated, frankly, to me from the body of the court that at the time he attended the registry with the petition and the documents he intended to take . the necessary steps to have himself made bankrupt, as he was then insolvent. He held the view at all times thereafter until 21 August 1978 that he was in truth a bankrupt having been made bankrupt on 2 May 1978. It was on 21 August 1978 that doubt was cast in his mind as to whether or not he was a bankrupt by reason of what was said to him by a deputy registrar in bankruptcy that day, prior to the commencement of his public examination which had been listed for that day. Mr. Low says to me today that he does not wish to be a bankrupt and would prefer that it be said he was not made bankrupt on-2 May 1978 but he, in essence, abides the order of the court. There is no doubt, on the evidence before me, that sinc 2 May 1978 Mr Low had conducted himself in every material, res pect as if he were a bankrupt the source of his bankruptcy be DW/KS/2b . 3 31/7/79 LOW the presentation »f his own petition on 2 May 1978. I need not refer to that evidence in detail. It is fully set forth in the affidavits which have been read 'and relied on by Mr Urquhart who appears for the Official Receiver. Section 55 of the Act provides that: A debtor may present to the Registrar a petition against himself accompanied by a statement of his affairs verified by affidavit. (2) The petition and statement of affairs shall each be in accordance with the prescribed form. _Sub-section 3 of that section -_provides: If the petition and the statement of affairs each appears to the Registrar to be in accordance with the prescribed . form or the Court, in pursuance of the next succeeding sub-section, directs the Registrar to accept the petition and statement ~ (a) They shall be accepted by the Registrar, who shall endorse the petition accordingly; and (b) Thereupon by force of this section the debtor becomes a bankrupt by virtue of the presentation of the petition. Sub-section 4 provides that: DW/KS/3b 4 " 31/7/79 Low If either the petition or the statement of affairs appears to the Registrar not to be in accordance with the prescribed form, neither shall be accepted by the Registrar 'unless the Court, upon reference by the Registrar directs him to accept them. Sub-section 5 provides: Where a debtor becomesabankrupt by force of this section, the Registrar shall forthwith give notice of the bankruptcy ra to the official receiver. Sub-section 8 provides: A person who becomes a bankrupt by force of this section continues to be bankrupt until one of three events oceur. ~ (a) He is discharged by force of section 149 of this Act; (b) He is discharged by order of the Court; or (c) His bankruptcy is annulled. The last mentioned source ofcessation of bankruptcy is critical to the resolution of the question before me. Section 154 of the Act provides so far as relevant. as follows: . 154(1) Where the court is satisfied - (a) That a sequestration order ought not to have been made or, in the case of a debtor's petition that the petition ought not to have been presented or ought not to have been accepted by the Registrar, the court may make an order annulling the bankruptcy. DW/KS/4b : 5 31/1/79 Low In my opinion, paragraph (a) of sub-section (1) of section 154 postulates that there is a valid bankruptcy on foot where a petition was presented by the debtor, provided that it appeared to the Registrar that the petition and the statement of affairs were in accordance with the prescribed form and that he thereupon accepted those documents. One cannot read section 154 (1) (a) independently of section 55 (3). They must be read together and, in my opinion, they | may be read together harmoniously. Fy It is not a condition precedent to the commence- ment of a bankruptcy initiated by the presentation by a debtor of his own petition that the petition-and the statement of affairs necessarily are in accordance with the prescribed form. The statute eschews that test and provides that it is the formation by the Registrar of his opinion that the petition and statement of affairs appear to be in accordance with the prescribed forms that generates the necessary statutory consequences of acceptance by the Registrar and bankruptcy. Those are the clear words of sub- section (3) of s. 55. it follows, from what I have said, that if, in fact, the Registrar has accepted a petition and a statement of affairs which appeared to him to be in accordance with the prescribed form, but in truth were not, there is a valid bankruptcy on foot; but it affords to the bankrupt a ground for applying for annulment of the bankruptcy. DW/KS/5b a 6 31/7/79 LOW | In these circumstances, in my opinion, as the requisite opinion was formed by the Registrar for the purposes of sub-section (3) of section 55 and he has accepted the necessary documents, namely, the petition and the statement of affairs, and he had endorsed the petition accordingly,it follows that Mr. Low was made bankrupt on 2 May 1978. I' reach this conclusion notwithstanding that the strongest point which may be put against Mr. Urquhart's- submissions is that a document cannot be a petition under s. 55 unless it is signed by the petitioner and that an affidavit verifying a statement of affairs cannot be such unl it is at least sworn by the deponent. : Accordingly, I declare that Raymond Lyell Low 'of 46 Bellevue Street, Blacktown, New South Wales, . accountant, became bankrupt on 2 May 1978 by force o& xX section 55 of the Bankruptcy Act, 1966, by virtue of the presentation on 2 May 1978 of a petition against himself. I make no order as to costs. DW/KS/6b oo 7 31/7/79 LOW