Mitchicko Ltd. (Bkpt.), Re (1991), 92 Nfld. & P.E.I.R. 240 (NFTD);
287 A.P.R. 240
MLB headnote and full text
In The Matter of the Bankruptcy of Mitchicko Limited
(1990 N.F. No. 4779)
(Estate No. 034894)
Indexed As: Mitchicko Ltd. (Bankrupt), Re
Newfoundland Supreme Court
Trial Division, In Bankruptcy
Halley, J.
April 1, 1991.
Summary:
A bank filed a petition for a receiving order against a restaurant operator.
The Newfoundland Supreme Court, Trial Division, dismissed the petition because it was not filed within the limitation period prescribed in s. 43 of the Bankruptcy Act.
Bankruptcy – Topic 1928
Receiving order – Application or petition – Requirement of act of bankruptcy within six months preceding application – In February 1989 a restaurant operator failed to meet its liabilities as they became due – In April 1991 the debtor’s bank filed a petition for a receiving order against the debtor – The issue was whether the six month limitation period in s. 43 of the Bankruptcy Act applied – The bank alleged that a demand for payment in November l990 started a new limitation period – The Newfoundland Supreme Court, Trial Division, dismissed the bank’s petition because it was not filed within the limitation period.
Cases Noticed:
Atlas Hardware Limited, Re (1978), 20 Nfld. & P.E.I.R. 67; 53 A.P.R. 67, refd to. [para. 13].
England and Son, Re: Brown v. Kelly Douglas Company, [1923] 1 W.W.R. 1340; [1923] 2 D.L.R. 738, refd to. [para. 14].
Cedarhurst Properties Ltd., Re, [1980] 3 W.W.R. 494; 33 C.B.R.(N.S.) 81 (B.C.S.C.), refd to. [para. 15].
Cedarhurst Properties Ltd., Re, [1980] 4 W.W.R. 200; 34 C.B.R.(N.S.) 278 (B.C.S.C.), refd to. [para. 18].
Statutes Noticed:
Bankruptcy Act, R.S.C. 1985, c. B-3, sect. 42(1)(j), sect. 43(1) [para. 11].
Counsel:
Robert M. Hall, for the petitioner;
F. Greig Crockett, for the respondent.
This petition was heard by Halley, J., of the Newfoundland Supreme Court, Trial Division, in Bankruptcy. The decision of Halley, J., was filed on April 1, 1991.
