Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574

FEDERAL COURT OF AUSTRALIA

Trustees of the Franciscan Missionaries of Mary v Weir [2000] FCA 574 BANKRUPTCY – bankruptcy notice in prescribed form unless defective because the signature confirming its issue on the application of the creditor's authorised agent (a solicitor) was not the personal signature of the solicitor but of an employee signing "per employ" – whether such a signature has effect as that of the solicitor – whether the bankruptcy notice fails to comply with an essential requirement of the Act – whether the defect (if any) is a formal defect cured by s 306 – discussion of the effect of the amendment of s 41 by the Bankruptcy Legislation Amendment Act 1996 – whether the prescribed form of bankruptcy notice must be applied for by an authorised agent not being a corporation or individuals acting jointly – relation between the prescribed form and s 306 – whether every part of the prescribed form is made essential by the Act and its prescription – discussion of power to stay proceedings under a sequestration order made by a Registrar pending its review by the Court – conditions of the exercise of delegated judicial power by an officer of a federal court – effect of general denial in the Bankruptcy Act of power to stay a sequestration order beyond 21 days – power of Court to order a stay in review proceeding where the sequestration order was made by a Registrar. Bankruptcy Act 1966, ss 31A (now repealed), 37, 41, 52(3), 228, 238, 306. Bankruptcy Legislation Amendment Act 1996, s 3, Sch. 1 Federal Court of Australia Act 1976, ss 18AC, 23, 35A Acts Interpretation Act 1901, s 25C Federal Court Rules, Order 77 r 7, Order 79 r 4 Bankruptcy Regulations, reg 4.01, 4.02 Meekin v Commonwealth Bank of Australia [1999] FCA 682 approved McWilliam v Jackson [2000] FCA 175 disapproved National Australia Bank Limited v Westbrook [2000] FCA 246 disapproved McRae v Coulton (1986) 7 NSWLR 644 applied Muirhead v Commonwealth Bank of Australia (1996) 139 ALR 561 applied London County Council v Agricultural Food Products Ltd [1955] 2 QB 218 applied Metropolitan Waste Disposal Authority v Willoughby Waste Disposals Pty Ltd (1987) 9 NSWLR 7 applied Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4259 applied Deputy Commissioner of Taxation (Vic) v Boxshall (1988) 83 ALR 175 applied Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 applied Re McCormac; Ex parte Taylor (1985) 10 FCR 162 referred to Downey v Pryor (1960) 103 CLR 353 referred to Farrugia v Farrugia [2000] FCA 385 referred to Official Trustee in Bankruptcy in the matter of Street v Street [2000] FCA 216 referred to Talbot v NRMA Holdings Limited (1996) 68 FCR 590 referred to James v Federal Commissioner of Taxation (1955) 93 CLR 631 applied Pillai v Comptroller of Income Tax [1970] AC 1124 applied Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 applied Bendigo Bank Ltd v Williams [2000] FCA 482 discussed, distinguished Ex parte Stanford. In re Barber (1886) 17 QBD 259 referred to CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 referred to Australia and New Zealand Banking Group v Hubner [1999] FCA 1346 referred to Harris v Caladine (1991) 172 CLR 84 applied Cheesman v Waters (1997) 77 FCR 221 applied D'Antuono v Minister of Health (1997) 80 FCR 226 applied Taylor v Deputy Commissioner of Taxation [1999] FCA 195 applied Re Young; Ex parte Hunter MMI Finance Limited (Burchett J, unreported, 23 March 1993) referred to Australian Guarantee Corporation Limited v Collard (Tamberlin J, unreported, 30 September 1997) referred to Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 referred to RE PAULINE DOROTHY WEIR; TRUSTEES OF THE FRANCISCAN MISSIONARIES OF MARY v PAULINE DOROTHY WEIR N 8445 of 1999 BEAUMONT, BURCHETT AND HELY JJ 5 MAY 2000 SYDNEY