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 < 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 dismissed. In Re a_ Debtor; Debtor v. Petitioning Creditor; Ex -parte Official Receiver (1933) B. & C.R. 53, an affidavit verifying the statements contained in a petition was sworn and the petition was signed a day before the act of bankruptcy alleged in the petition was committed. It was held (within the meaning of the equivalent of s.306(1)) that no substantial injustice had been caused by the irregularity. However, since the petition was not brought to the Registrar until after the act of bankruptcy had been committed, the reasoning may be distinguished. from the present case. In my opinion, the present defect is not formal, nor is it merely an irregularity. It therefore falls outside s.306(1). In the circumstances, the petition must be dismissed. I order that the petition be dismissed. I make no order as to costs. I certify that this and the preceding ore. (/) page are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. MWh 1 PR Associate Dated: os Sep terol KG.