CATCHWORDS BANKRUPTCY - unsigned creditor's petition bad. Bankruptcy Act 1966, ss.47(1)(a), 306 Re: Desmond Robert Taylor Ex parte: James Conrad Ryan Qld P716/86 PINCUS Jd. BRISBANE 15 September 1986 RECEIV"D 17 SEP 1986 FEDERAL cou, AUSTRALIA. OF PRINCIPA| REGISTAY ~ IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ) QLD PET 716 of 86 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ~ RE: DESMOND ROBERT TAYLOR EX PARTE: JAMES CONRAD RYAN MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: 15 SEPTEMBER 1986 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 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. IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISTON ~ QLD PET 716 of 86 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ~ RE: DESMOND ROBERT TAYLOR EX PARTE: JAMES CONRAD RYAN PINCUS J. 15 SEPTEMBER 1986 REASONS FOR JUDGMENT 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 L.Jd.Ch. 318, 126 L.T. 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 urregularity and that the injustice cannot be remedied by an order of that Court". 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. 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. 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 Q.B. 729 at p-734) was one in which a summons was issued out of a district registry anstead 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.d. 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". The question is whether a document purporting to bea petition, but signed by no one, is a nullity. 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 1mportance 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 F.L.R. 306; it means handling or delivering the petition to the appropriate court officer and acceptance of it by hin. To my mind, the most cogent argument against the validity of this petition is that courts have, ona 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 A.L.R. 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) 1W. & W. (I.E. & M.) 174, in which Chapman J. held that a petition for sequestration not signed by the petitioning creditor could not be amended. 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. + certify that this and the & preceding pages are a true copy of the reasons for judgment herein of His Honour Mr, Justice Pincus ptt Lijrro ; 7 A ssociate Dated i" Sem Ce btr 1986 ,