Re Henderson, N.B. & anor Ex parte A debtors petition [1985] FCA 446

Re Henderson, N.B. & anor Ex parte A debtors petition [1985] FCA 446

The joinder of Mrs. Henderson's name in the debtor's petition constitutes only a formal defect, and because she is already bankrupt on her own petition, her inclusion does not affect the validity of Mr. Henderson's petition. The court has power to amend the petition to delete her name, and directs the Registrar to accept the petition as it relates to Nigel Bruce Henderson only.

Parties
Petitioner: Nigel Bruce Henderson; Petitioner (initially); Subsequently Removed as Petitioner: Marlene Henderson
Jurisdiction
Australia
Judgment Date
25 July 1985
Procedural Posture
Bankruptcy Debtor's Petition / Reference by Registrar; Amendment of Petition; Judicial Direction
Outcome
Amendment allowed; Registrar directed to accept petition for Nigel Bruce Henderson only; liberty to Official Receiver to apply for consolidation under s.53.
Legal Topics
Debtor's Petition, Bankruptcy Proceedings, Formal Defects and Irregularities, Amendment of Proceedings
Bankruptcy Debtor's Petition Bankruptcy Proceedings Formal Defects and Irregularities Amendment of Proceedings

Case Brief

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Parties

Nigel Bruce Henderson

Petitioner

Marlene Henderson

Petitioner (initially); Subsequently Removed as Petitioner

Procedural Posture

Bankruptcy Debtor's Petition / Reference by Registrar; Amendment of Petition; Judicial Direction

Legal Issues

  1. 1 Whether a joint debtor's petition under s.55 of the Bankruptcy Act 1966 is invalid due to formal defect or irregularity when one petitioner is already bankrupt on her own petition.
  2. 2 Whether the petition may be amended to delete the name of one petitioner.

Ratio Decidendi

The joinder of Mrs. Henderson's name in the debtor's petition constitutes only a formal defect, and because she is already bankrupt on her own petition, her inclusion does not affect the validity of Mr. Henderson's petition. The court has power to amend the petition to delete her name, and directs the Registrar to accept the petition as it relates to Nigel Bruce Henderson only.

Court Disposition

Amendment allowed; Registrar directed to accept petition for Nigel Bruce Henderson only; liberty to Official Receiver to apply for consolidation under s.53.

Orders

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