Re Read, P. v Ex parte Plumbers Supplies Co-operative Ltd [1995] FCA 335

Re Read, P. v Ex parte Plumbers Supplies Co-operative Ltd [1995] FCA 335

The words "to be served" in the petition were an irregularity within s 306(1) and caused no substantial injustice because, when the petition was served, the bankruptcy notice had already been served and the petition made sufficiently clear, though imperfectly, the act of bankruptcy relied on. The judgment debtor would have failed in his objection, so the petitioning creditor was entitled to the costs of the petition.

Jurisdiction
Australia
Judgment Date
26 May 1995
Procedural Posture
Bankruptcy Creditor's Petition / Reasons for Judgment and Orders on Dismissal of Petition and Costs
Outcome
The petition was dismissed and the debtor was ordered to pay the petitioning creditor's costs.
Legal Topics
["creditor's Petition" 'formal Defect or Irregularity' 'bankruptcy Notice' 'costs']
['bankruptcy'] ["creditor's Petition" 'formal Defect or Irregularity' 'bankruptcy Notice' 'costs']

Case Brief

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Procedural Posture

Bankruptcy Creditor's Petition / Reasons for Judgment and Orders on Dismissal of Petition and Costs

Legal Issues

  1. 1 ["Whether the misdescription of the act of bankruptcy in the creditor's petition was a formal defect or irregularity remediable under s 306(1) of the Bankruptcy Act 1966 (Cth)." 'Whether the judgment debtor would have failed in his objection to the petition.' 'Who should bear the costs of the sequestration proceedings after the judgment debt was paid shortly before the hearing.']

Ratio Decidendi

The words "to be served" in the petition were an irregularity within s 306(1) and caused no substantial injustice because, when the petition was served, the bankruptcy notice had already been served and the petition made sufficiently clear, though imperfectly, the act of bankruptcy relied on. The judgment debtor would have failed in his objection, so the petitioning creditor was entitled to the costs of the petition.

Court Disposition

The petition was dismissed and the debtor was ordered to pay the petitioning creditor's costs.

Orders

  • ['The Petition is dismissed.' "The Debtor to pay the Petitioning Creditor's costs as agreed or taxed."]