Re Henderson, N.B. & Anor v. Ex parte A Debtors Petition [1985] FCA 319

Re Henderson, N.B. & Anor v. Ex parte A Debtors Petition [1985] FCA 319

The addition of Marlene Henderson's name in the petition is a formal defect only, which does not invalidate the proceedings. The Court has power under s.33 and rule 195 to allow amendment to remove her name as a petitioner. Since Mrs. Henderson is already bankrupt on her separate petition, the current petition is to be operative only in respect of Mr. Nigel Bruce Henderson, and his bankruptcy is appropriate based on material before the Court.

Parties
Debtor: Nigel Bruce Henderson; Debtor: Marlene Henderson
Jurisdiction
Australia
Judgment Date
25 July 1985
Procedural Posture
Bankruptcy / Reference by Registrar Under S.55(4), Debtor's Petition
Outcome
Petition accepted as to Nigel Bruce Henderson; amendment granted to remove Marlene Henderson as petitioner.
Legal Topics
Formality of Debtor's Petitions, Amendment of Bankruptcy Petition, Joint Debtor Petitions, Defects and Irregularities in Bankruptcy Proceedings
Bankruptcy Formality of Debtor's Petitions Amendment of Bankruptcy Petition Joint Debtor Petitions Defects and Irregularities in Bankruptcy Proceedings

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Parties

Nigel Bruce Henderson

Debtor

Marlene Henderson

Debtor

Procedural Posture

Bankruptcy / Reference by Registrar Under S.55(4), Debtor's Petition

Legal Issues

  1. 1 Whether the joint debtor's petition under s.55, naming both husband and wife, is invalid due to formal defect or irregularity
  2. 2 Whether amendment to remove one petitioner is permissible
  3. 3 Whether formal defects in petition or statement of affairs invalidate proceedings

Ratio Decidendi

The addition of Marlene Henderson's name in the petition is a formal defect only, which does not invalidate the proceedings. The Court has power under s.33 and rule 195 to allow amendment to remove her name as a petitioner. Since Mrs. Henderson is already bankrupt on her separate petition, the current petition is to be operative only in respect of Mr. Nigel Bruce Henderson, and his bankruptcy is appropriate based on material before the Court.

Court Disposition

Petition accepted as to Nigel Bruce Henderson; amendment granted to remove Marlene Henderson as petitioner.

Orders

  • Registrar directed to accept the debtor's petition insofar as it relates to Nigel Bruce Henderson.
  • Liberty granted to Official Receiver to apply for consolidation under s.53.