In Re: Captain Reginald Frew Woodward, Debtor; Ex Parte: Petitioning Creditor Captain David Bryson Malaher (Cause No. 3 of 1945) [1945] EACA 65 (1 January 1945)

BANKRUPTCY JURISDICTION

BEFORE LUCIE-SMITH, J.

Re CAPTAIN REGINALD FREW WOODWARD, Debtor Ex Parte THE PETITIONING CREDITOR CAPTAIN DAVID BRYSON MÁLAHER

Cause No. 3 of 1945

Bankruptcy—Receiving Order—Courts (Emergency Powers) Ordinance, 1944— Enforcement of judgment—Tort—Stay of proceedings.

Petition by a creditor to have a Receiving Order issued against a debtor on the ground of non-payment of damages and costs awarded in Divorce proceedings.

The debtor was a soldier and being unable to pay claimed the protection of the Courts (Emergency Powers) Ordinance, 1944.

Held (16-3-45).—That as the debtor was unable to pay his debts by reason of circumstances directly or indirectly attributable to the war he was entitled to the protection of the Courts (Emergency Powers) Ordinance, 1944.

Petition allowed and Receiving Order made. Stay of proceedings ordered until further order.

Re Debtors Ex parte the Petitioning Creditors v. The Debtors (1944) 2 A. E. R. 525 referred to

Stratton for petitioning creditor.

Debtor in person.

JUDGMENT.—This is a petition by a creditor to have a Receiving Order issued against the respondent herein. A Bankruptey Notice was duly served on the respondent and the provisions of section 7 of the Bankruptcy Ordinance have been complied with. On the face of it the petitioner is entitled to succeed. I'was however in some doubt as to what the position was vis-à-vis the Courts (Emergency Powers) Ordinance, 1944, and I therefore adjourned the case in order to consider that point.

Section 2 (1) (b) reads: "For the purposes of this Ordinance a person entitled to the benefit of a judgment or order, who issues a bankruptcy notice or presents a bankruptcy petition .... founded on the non-payment of money due under that judgment or order shall be deemed to be proceeding to the enforcement of that judgment or order". The petitioner herein is undoubtedly a person proceeding to the enforcement of a judgment and section 3 (1) therefore applies to these proceedings unless the petitioner can take himself out of the section by reason of the proviso thereto. The judgment on which the petition is proceeding is in respect of damages and costs awarded to him against the present respondent in Divorce Cause No. 19/43.

Proviso (a) to section (3) (1) reads as follows: $-$ "Provided that nothing in this sub-section shall apply to $(a)$ any judgment for the recovery of damages for tort". A tort has been defined as a wrong independent of contract and I have little doubt that damages awarded by a Court in its Divorce Jurisdiction are analagous to if not absolutely the same as damages for tort. If that be so then the petitioner herein is outside the provisions of section 3 (1) and is entitled to the order asked for.

We must however consider section 3 (5) which reads: $-$

"Where a bankruptcy petition has been presented against any debtor ..... on the ground that it is unable to pay its debts and the debtor proves to the satisfaction of the Court having jurisdiction in the bankruptcy that his inability to pay his debts is due to circumstances directly or indirectly attributable to any war in which His Majesty may be engaged, the Court may at any time stay the proceedings under the petition for such time and subject to such conditions as the Court thinks fit".

In the present case the respondent has given evidence from which it cannot be doubted that he is unable to pay his debts by reason of circumstances directly and indirectly attributable to the present war. That being so while allowing the petition and making the Receiving Order against the Respondent as prayed. I further order a stay of proceedings under the petition until further order. See re Debtors Ex parte The Petitioning Creditors v. The Debtors (1944) 2 A. E. L. R.

525. Liberty to apply.