Manias, Re N. Ex Parte Edsill Pty Ltd [1986] FCA 374

Manias, Re N. Ex Parte Edsill Pty Ltd [1986] FCA 374

Retrospective ratification by all directors was effective to authorise the director's prior presentation of the petition on behalf of the company. The defect of naming the director rather than the company as petitioner is a correctable irregularity not invalidating the petition.

Parties
Debtor: NICK MANIAS; Creditor: EDSILL PTY. LIMITED
Jurisdiction
Australia
Judgment Date
25 March 1986
Procedural Posture
Creditor's Petition for Sequestration Order / Judgment on Petition and Formal Defects
Outcome
Sequestration order made against the estate of the debtor. Petitioning creditor granted leave to amend the petition. Need for re-verification and re-service dispensed with. Costs to be taxed and paid according to the Act, but not to include costs for making amendments.
Legal Topics
Creditor's Petition, Authority to Present Petition, Company Law—director's Authority, Ratification of Unauthorized Act, Formal Defects in Process
Bankruptcy Creditor's Petition Authority to Present Petition Company Law—director's Authority Ratification of Unauthorized Act Formal Defects in Process

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Parties

NICK MANIAS

Debtor

EDSILL PTY. LIMITED

Creditor

Procedural Posture

Creditor's Petition for Sequestration Order / Judgment on Petition and Formal Defects

Legal Issues

  1. 1 Whether a director of a company had authority to present a creditor's petition on behalf of the company
  2. 2 Whether retrospective ratification by all directors was effective to cure any lack of authority
  3. 3 Whether a petition defectively naming a director as petitioner rather than the company constitutes a fatal defect or irregularity

Ratio Decidendi

Retrospective ratification by all directors was effective to authorise the director's prior presentation of the petition on behalf of the company. The defect of naming the director rather than the company as petitioner is a correctable irregularity not invalidating the petition.

Court Disposition

Sequestration order made against the estate of the debtor. Petitioning creditor granted leave to amend the petition. Need for re-verification and re-service dispensed with. Costs to be taxed and paid according to the Act, but not to include costs for making amendments.

Orders

  • Declaration that Mr Hine had authority to sign the petition on behalf of the company.
  • Grant of leave to amend petition in accordance with reasons.