Bride R v Anderson Rice [1994] FCA 1064

JUDGMENT No. 2s! QS seal sock tore

CATCHWORDS

BANKRUPTCY - creditor's petition - judgment debt - name of petitioning creditor a firm name - judgment entered in firm name - change of identity of partners between entry of judgment and filing of petition - no evidence of assignment of debt from retiring partners to newly admitted partners - whether petition should be dismissed - whether hearing of

petition should be adjourned.

Bankruptcy Act 1966 s 307.

Re Hill; Ex parte Holt & Co [1921] 2 KB 831.

ROBERT BRIDE V. ANDERSON RICE (A FIRM).

NO. VP 944 of 1994

Judge: GRAY J. Place: MELBOURNE

Date: 14TH DECEMBER 1994

94.

RECEIVED

- 6 FEB 1995

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ) No. VP 944 of 1994 BANKRUPTCY DISTRICT OF THE STATE ) OF VICTORIA )

BETWEEN:

ROBERT BRIDE

Debtor

-and-

ANDERSON RICE (A FIRM)

Petitioning Creditor

JUDGE: Gray J. PLACE: Melbourne DATE: 14th December 1994

REASONS FOR JUDGMENT

The creditor's petition in the present matter has been filed, giving the name of the petitioning creditor as "Anderson Rice (A Firm)". Section 307 of the Bankruptcy Act 1966 permits any person or persons carrying on business under a firm name to take proceedings in the firm name. There is a danger, however, in assuming that because proceedings can be taken in a firm name, a firm is in some way equated to a

corporation or other legal person.

-2-

The petition is based on a judgment of a Magistrate's Court, which was obtained in the firm name on 21ist June 1990. At that date, there were seven partners in the firm. At the date on which the petition was filed in this Court, there were also seven partners in the relevant firm. The identity of the seven persons, however, was not entirely the same as the identity of the seven who were partners at the time when the judgment was obtained. Some partners had