Gill -v- Official Asignee in Bankruptcy & ors, [2003] IESC 6 (2003)

Docket Number:82/02
Party Name:Gill, Official Asignee in Bankruptcy & ors
Judge:Fennelly J.
 
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THE SUPREME COURT 82/2002

Denham J.

Murray J.

Fennelly J.

IN THE MATTER OF JOHN GILL, A BANKRUPT

BETWEENJOHN GILL Appellantand

THE OFFICIAL ASSIGNEE IN BANKRUPTCY

PHILIP O'REILLY AND COMPANY LIMITED

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND

CLUNE LYNCH AND COMPANY

THE REVENUE COMMISSIONERS Respondents/Notice Parties

JUDGMENT delivered on the 5th day of February, 2003, by FENNELLY J.

The appellant is a litigant in person. He was adjudicated a bankrupt in 1995. In 2001, he applied to the High Court to annul the order of 1995, which adjudicated him a bankrupt. McCracken J rejected his application. He has appealed to this Court.

The Bankruptcy Act, 1988 codified the law of bankruptcy in Ireland. Section 11 of that act lays down the procedure for adjudicating a person bankrupt. A creditor is entitled to present a petition to the High Court proving that a debt, in the form of a liquidated sum, of at least £1,500 is owing to him by a debtor domiciled in the State.

The appellant was adjudicated a bankrupt on 28th July 1995 on the Petition of Philip O'Reilly and Company Limited. (hereinafter called "the Petitioner"). Section 16 of the act allows a bankrupt, within three days (or such extended time as the Court allows) after service of the order of adjudication on him, to show cause to the Court against the validity of the adjudication.

The history of the matter, as set out in the judgment of McCracken J, is not in controversy and is as follows:

"Background to the Bankruptcy

The Bankrupt is a building contractor carrying on business at Newmarket-on-Fergus in County Clare and on 23rd July, 1993 the Petitioner obtained judgment against him in the Circuit Court in the sum £8,523.90 together with interest at Courts Act rates from 1st January, 1994 to 14th March, 1994 and costs, which total sum under the judgment amounted to £10,935.86. The Bankrupt made two payments to the Petitioner subsequent to the judgment on 18th March, 1994 and 18th July, 1994 amounting in all to over £2,000.

The Petitioner then issued a bankruptcy petition which is dated 26th July, 1994 but was not in fact filed until 21st October, 1994 and which was presented to the Court on 21st November, 1994. The petition claims that the Bankrupt committed an act of Bankruptcy in that:-

'The said John Gill has failed to pay to your Petitioner Philip O'Reilly and Company Limited the said sum of £8,935.86 due as aforesaid and has failed to secure or compound for the same to the satisfaction of your Petitioner Philip O'Reilly and Company Limited following service upon the said John Gill on the 11th July, 1994 of a bankruptcy summons issued under seal of the High Court as your Petitioner has been informed and believes'

This petition was supported by an Affidavit of a Director of the Petitioner sworn on 12th August, 1994 which averred that the Bankrupt was and still is indebted to the Petitioner in the sum of £8,935.86. This Affidavit is supported in the normal way by a schedule setting out the original sums due under the judgment and the payments made by the Bankrupt and further stating:-...

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