Growden v Wiltshire [1935] HCA 27; (1935) 52 CLR 286 (9 May 1935)

HIGH COURT OF AUSTRALIA

Growden Appellant; and Wiltshire Respondent.

H C of A

On appeal from the Court of Bankruptcy.

9 May 1935

Rich, Starke, Dixon, Evatt and McTiernan JJ.

Alderman (with him Kearnan), for the appellant.

Ligertwood K.C. (with him Wright), for the respondent.

Alderman, in reply.

The following judgments were delivered:—

Rich J.

We think that the petition ought not to have been presented in the official liquidator's name, but that the irregularity should be met by amendment. The bankruptcy notice we think operated to found an act of bankruptcy. The matter should be remitted to the Bankruptcy Court for the purpose of amending the petition by substituting the name of the company for that of the official liquidator, and of making all consequential amendments. Otherwise the appeals will be dismissed. No order as to costs.

Starke J.

The bankruptcy notice is a sufficient compliance with the Bankruptcy Act, secs. 52 (j) and 53. But the Act requires that the petition for sequestration be presented by a creditor. The company in this case, and not the liquidator, is the creditor for that purpose.

Dixon J.

I agree. In substance I think the bankruptcy notice is sufficient. In requiring payment to the official liquidator as the liquidator of the company, it follows the order of the Supreme Court upon which it is founded. It is not wrong in calling upon the debtor to secure or compound for the sum ordered to be paid to the satisfaction of the official liquidator. It would have been open to little criticism in describing the counter-claim, set-off, or cross-demand by which the debtor might comply if it had called it a counter-claim, set-off, or cross-demand against the company and not against the liquidator. But this is an irregularity which could not have caused any substantial injustice, and ought not to invalidate the bankruptcy notice (sec. 7). The case is almost covered by In re De Murrietta; Ex parte South American and Mexican Co.[1], except that there the petition needed no amending, because it was presented in the name of the company.

It may be desirable to add that I do not disagree with the contention that sec. 52 (j) does not cover a liquidator and make him a creditor in respect of a judgment debt of the company.

Evatt J.

I agree.

McTiernan J.

I agree.

Matter remitted to the Bankruptcy Judge to amend the petition by substituting the name of the company for that of the liquidator, and to make any consequential amendments. Otherwise appeals dismissed.

Solicitors for the appellant, Homburg, Melrose & Homburg.

Solicitors for the respondent, Baker, McEwin, Ligertwood & Millhouse.

[1] (1896) 12 T.L.R. 238; 3 Mans. 35.