Re McCormac, L. v. Ex parte Taylor, H.A.F.C. [1985] FCA 453

Re McCormac, L. v. Ex parte Taylor, H.A.F.C. [1985] FCA 453

The failure to effect personal service in strict accordance with the substituted service order, namely, delay of one day, constituted an irregularity under s.306(1) of the Bankruptcy Act and did not cause substantial or irremediable injustice to the debtor, allowing the sequestration order to be made.

Parties
Debtor: Leigh McCormac; Petitioning Creditor: Herbert Albert Frederick Charles Taylor; Trustee: Richard John Grellman
Jurisdiction
Australia
Judgment Date
13 September 1985
Procedural Posture
Creditor's Petition in Bankruptcy / Final Judgment and Orders
Outcome
Sequestration order made against debtor's estate; costs to be paid; order draft to Registrar.
Legal Topics
Substituted Service of Bankruptcy Notice, Formal Defects and Irregularities, Irremediable Injustice Under S.306, Sequestration Orders
Bankruptcy Substituted Service of Bankruptcy Notice Formal Defects and Irregularities Irremediable Injustice Under S.306 Sequestration Orders

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Parties

Leigh McCormac

Debtor

Herbert Albert Frederick Charles Taylor

Petitioning Creditor

Richard John Grellman

Trustee

Procedural Posture

Creditor's Petition in Bankruptcy / Final Judgment and Orders

Legal Issues

  1. 1 Whether failure to comply precisely with an order for substituted service of a bankruptcy notice invalidates the proceedings
  2. 2 Whether such non-compliance is a formal defect or irregularity under s.306 of the Bankruptcy Act 1966
  3. 3 Whether substantial and irremediable injustice has been caused by the defect

Ratio Decidendi

The failure to effect personal service in strict accordance with the substituted service order, namely, delay of one day, constituted an irregularity under s.306(1) of the Bankruptcy Act and did not cause substantial or irremediable injustice to the debtor, allowing the sequestration order to be made.

Court Disposition

Sequestration order made against debtor's estate; costs to be paid; order draft to Registrar.

Orders

  • The debtor has committed the act of bankruptcy alleged in the petition.
  • Satisfied as to proof of other matters required by the Act.