Re Egar, T. v. Ex Parte K.R. & J.Secombe Pty Ltd [1986] FCA 422

BBR

CATCHWORDS Bankruptcy - petition filed one day before act of bankruptcy committed - whether a "formal defect" or "irregularity" for

purposes of 3.306(1) of the Bankruptcy Act 1966.

RE: TERRY EGAR EX PARTE: K.R. & J. SECOMBE PTY. LIMITED

No. P720/1986

Beaumont, J. Sydney

23 September 1986

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. P720 of 1986

AND THE AUSTRALIAN CAPITAL TERRITORY)

RE: TERRY EGAR EX PARTE: K.R. & J. SECOMBE PTY. LIMITED

MINUTES OF ORDER

Judge making order: Beaumont, J. Date order made: 23 September 1986

Where made: Sydney

THE COURT ORDERS THAT:

1. The Petition be dismissed.

2. No order as to costs.

Note: Settlement and entry of orders is dealt with in Bankruptcy Rule 124.

IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION

BANKRUPTCY DISTRICT OF NEW SOUTH WALES No. P720 of 1986

ewer rvrnr

AND THE AUSTRALIAN CAPITAL TERRITORY)

RE: TERRY EGAR EX PARTE: K.R. & J. SECOMBE PTY. LIMITED

CORAM: Beaumont J. DATED: 23 September 1986 EX TEMPORE REASONS FOR JUDGMENT

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In this matter, which is an uncontested petition for a sequestration order, it appears that the petition was lodged for filing one day before the act of bankruptcy relied upon was

committed.

By sub-s.(1)(c) of s.44 of the Bankruptcy Act 1966, a creditor's petition shall not be presented against a debtor unless the act of bankruptcy on which the petition is founded was committed within six months before the presentation of the petition. The marginal note to this provision is expressed as "conditions on which creditor may petition". The language of s.44 bears this description out. In other words, itis a

condition of the presentation of a bankruptcy petition that the

act of bankruptcy relied on was committed before the presentation of the petition. It follows that, unless the provisions of 3.306, sub-s.(1) of the Act are applicable, the petition must be