Background
Big Chief Hire Pty Ltd served a bankruptcy notice on Jordan Dallwitz on 31 August 2025, requiring compliance within 21 days. Dallwitz failed to comply, and the deadline fell on 21 September 2025 — a Sunday. The creditor treated the act of bankruptcy as occurring on that date and filed a creditor’s petition on 27 October 2025, which was formally presented to the court on 3 December 2025.
On 17 March 2026, a Registrar of the Federal Court dismissed the petition. Big Chief Hire applied for a review of that decision under s 35A of the Federal Court of Australia Act 1976 (Cth) and r 2.02 of the Federal Court (Bankruptcy) Rules 2016 (Cth). At the review hearing on 19 June 2026, Dallwitz appeared in person.
The Court’s Holding
Justice O’Sullivan allowed the review and made a sequestration order against the estate of Jordan Leigh Dallwitz. The Court was satisfied on the affidavit material that Dallwitz had failed to comply with the bankruptcy notice within 21 days, and that all other matters required to be proved under s 52 of the Bankruptcy Act 1966 (Cth) were established.
The only corrective step required concerned the date of the act of bankruptcy. Because 21 September 2025 was a Sunday, the legally operative date was 22 September 2025. The Court granted leave to amend the petition accordingly and dispensed with the need to file a freshly verified copy, noting that a supporting affidavit already confirmed non-compliance beyond the 21-day period. Creditor’s costs were fixed at $16,160 to be paid from the debtor’s estate.
Key Takeaways
- A Federal Court judge conducting a review under s 35A stands in the shoes of the Registrar and may make the sequestration order the Registrar declined to make, provided the statutory requirements under s 52 of the Bankruptcy Act 1966 (Cth) are met.
- Where the deadline for compliance with a bankruptcy notice falls on a Sunday, the act of bankruptcy is taken to occur on the next business day (here, Monday 22 September 2025); a minor date error in the petition does not by itself defeat the creditor’s case.
- Courts may grant leave to amend the date of the act of bankruptcy in a creditor’s petition and simultaneously dispense with the requirement to file an amended, re-verified petition where existing affidavit evidence already addresses the correct date.
Why It Matters
This decision is a practical reminder for insolvency practitioners that a Registrar’s dismissal of a creditor’s petition is not necessarily final — a de novo review before a judge remains available and can result in a sequestration order being made on the spot. Creditors who have their petitions dismissed on technical or procedural grounds should consider whether a s 35A review application is warranted.
The case also illustrates the courts’ willingness to correct minor date errors in petitions — particularly where the error flows from a weekend or public holiday — without requiring costly re-service or re-verification, provided the underlying facts of non-compliance are clearly established on affidavit. This pragmatic approach reduces the risk that debtors can exploit technical defects to avoid a sequestration order.