Searle, John Weslyn v Lincoln Contractors Pty Ltd [1981] FCA 118

Ex Temeore - Bankruptcy Act 1966

IN THE FEDERAL COURT OF AUSTRALIA

) ) QUEENSLAND DISTRICT REGISTRY ) No. G6 of 1981 ) GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND EXERCISING FEDERAL JURISDICTION IN BANKRUPTCY

JOHN WESLYN SEARLE Appellant

LINCOLN CONTRACTORS PROPRIETARY LIMITED Respondent

Coram: Fox, McGregor and Sheppard JJ 9 July 1981

Brisbane

FOX J:

We are hearing an appeal against a sequestration order made by Matthews J on 24 March last. The debtor has appealed on two grounds. One is to the effect that neither the petition, nor the evidence subsequently adduced, showed the authority of Mr. Schulz to sign the petition on behalf of the petitioning creditor Lincoln Contractors Proprietary Limited. The other ground is in effect that his Honour wrongly exercised his discretion in refusing an application

on behalf of the debtor to adjourn the hearing of the

petition.

We have been assisted by the researches of

counsel in resolving these questions, but it seems to me that the appeal should be dismissed. I shall make some

brief comments about the two grounds.

As to the first, without the necessity of going into the way in which the petition might have been drawn, the fact is that at a later stage there was filed an affidavit by Mr. Schulz in which he deposed to the fact that he had the authority of the company at the time the petition was executed and continued to have that authority. This affidavit was received in evidence before his Honour without objection. This in itself, I believe, would be enough to defeat the point raised, but the matter goes

further.

At an early date, on the application of the debtor, there had been an adjournment of the petition on the grounds of the i11 health of the debtor and the point now raised was not pressed at that stage. When later the matter was being decided by Matthews J he took care to go through the grounds set out in the notice of opposition, and it appears from a reading of the transcript that although the point appeared as one of the grounds of opposition, it was then abandoned. If therefore there were any irregularity in relation to the execution of the petition, or its presentation, it has been waived and overcome by subsequent events. It is not a matter which