David F. Mehigan (appli- cant) v John Duigan (respondent).

Bankruptcy - Execution of judgment - Orders of fieri facias - Applicant obtained judgment against respondent - Orders of fieri facias issued - Orders returned by county registrar certifying no goods to meet amounts due - Whether respondent committed act of bankruptcy - Whether wrong address endorsed on orders of fieri facias - Whether orders would be invalidated by misdescription of respondent and his abode - Whether bona fide attempt at execution made - Whether return of orders marked `nulla bona' a return on foot of execution under order of court - Bankruptcy (Ire- land) Amendment Act 1872, section 21 - Bankruptcy Amendment Act (Northern Ireland) 1929 - Bankruptcy Act 1988, sections 7 and 11 - Rules of the Superior Courts 1986, Order 42 rule 16.

The High Court (before Miss Justice Laffoy); judgment delivered 22 March 1999.

A return of orders of fieri facias certifying that there are no goods to satisfy the judgment sought to be executed cannot be regarded as a return of no goods so as to amount to an act of bankruptcy, within the meaning of section 7(1)(f) of the Bankruptcy Act 1988, unless some bona fide effort has been made by the county registrar to ascertain whether the debtor has in fact any goods to seize. However, before the court would reach such a conclusion the county registrar would have to be given an opportunity of being heard in relation to the efforts she or her officers had made and in the present case the only evidence before the court was that the county registrar was deflected away from the address on the orders by false information which the respondent had connived in providing. The High Court so held in adjudicating the respondent bankrupt.

Senan Allen BL for the applicant; Helen Bradford BL for the respondent.

Miss Justice Laffoy said that the respondent was seeking to have the applicant's petition to have him adjudicated a bankrupt dismissed. On 8 October 1996 the applicant, as official liquidator of Mantruck Services Ltd, had obtained judgment against the respondent in the amount of £91,239.80 together with costs which subsequently taxed in the sum of £117,275.46. On 11 September the applicant caused two orders of fieri facias to issue to the county registrar of County Westmeath in respect of those sums together with interest. These orders were returned by the county registrar on 30 September 1998 certifying that there were no goods to meet the amounts due on foot of the said orders in her bailiwick. The applicant then brought this petition which the respondent sought to set aside on the basis that the orders did not contain his correct address because of wrong information given by the applicant to the county registrar and further, the returns to the orders by the county registrar were wrongful and irregular.

The respondent gave evidence by affidavit, on which he was cross-examined, and further evidence on affidavit was given on his behalf by one Lorraine Connaire. Ms Connaire said that a letter dated 23 September 1998, addressed to the respondent and notifying him of the lodgment of the orders of fieri facias, arrived at her home at 3 St Patrick's Terrace, Patrick Street, Mullingar, Co Westmeath. She said that on 24 September 1998 she wrote to the county registrar and told him that there was nothing belonging to the respondent at that address and that the respondent normally resided at Kilglass, Strokestown, County Roscommon. She followed this up by personally contacting the Circuit Court Office and subsequent to this no Circuit Court official attended at her home.

Miss Justice Laffoy said that she was satisfied that the respondent was aware of the letter of 23 September and that the letter of 24 September was sent to the country registrar at his instigation. Further, the letter itself was misleading in that it stated that there was nothing belonging to the respondent at 3 St Patrick's Terrace and the letter also suggested that the respondent normally resided in Roscommon when he in fact spent a substantial portion of his time at 3 St Patrick's Terrace.

Miss Justice Laffoy said that Order 42 rule 16 of the Rules of the Superior Courts 1986 provides as follows:

"The address and description of the party against whom any execution order shall issue or such other description of him as the solicitor for the party issuing may be able to give shall be endorsed on such order, but the party against whom such order shall issue shall not be allowed to take advantage of the want of such endorsement, and it shall not be necessary to state the place of abode of either party in the body of such order." Consequently, the orders of fieri facias would not have been rendered invalid even if the court accepted that the respondent was resident at Kilglass, Co Roscommon. Miss Justice Laffoy said that in any event she was satisfied that the wrong address was not endorsed on the orders and that the applicant had not furnished wrong information to the county registrar.

The respondent argued that return of the orders of fieri facias was invalid because the county registrar had not acted diligently in pursuance of the obligations imposed on her by the orders and had not attempted to identify the goods of the respondent at St Patrick's Terrace. Miss Justice Laffoy referred to a Northern Ireland decision, In Re Alexander, bankrupt [1966] NI 128 where the Court of Appeal was considering section 21(5) of the Bankruptcy (Ireland) Amendment Act 1872, under which one of the circumstances giving rise to bankruptcy is "That execution against the debtor has been levied by seizure of his goods under process in action in any court or in any civil proceedings in the High Court, and the goods have been either sold or held by the Sheriff for twenty one days; or a return of no goods has been made by the Sheriff in the case of any such execution."

The Court of Appeal held that an adjudication of bankruptcy, grounded on a return of no goods where the sheriff had done nothing to ascertain whether the debtor had any goods to seize, could be annulled on the basis that this would not be a return within the meaning of section 21(5).

Miss Justice Laffoy said that the analogous provision in this jurisdiction to section 21(5) and on which the applicant seeks to rely is section 7(1)(f) of the Bankruptcy Act 1988 which provides:

"An individual . . . commits an act of bankruptcy in each of the following cases: . . . (f) if execution against him has been levied by the seizure of his goods under an order of any court or if a return of no goods has been made by the Sheriff or County Registrar whether by endorsement of the order or otherwise".

While the phrase "in the case of any such execution" contained in section 21(5) of the 1872 Act does not appear in section 7(1)(f) of the 1988 Act, Miss Justice Laffoy did not consider that this was a material distinction which affected the applicability of the Court of Appeal decision in In Re Alexander and was therefore of the view that a return of no goods in purported pursuance of section 7(1)(f) of the 1988 Act would be open to challenge unless accompanied by a bona fide attempt at execution.

Miss Justice Laffoy said that the court would, however, not adjudicate on a challenge of that nature without giving the sheriff or county registrar, as the case may be, an opportunity to be heard in relation to the matter as such a challenge would amount to impugning the conduct of a public officer in the performance of duties invested in him by a court.

In the present case the evidence merely establishes that the county registrar had her attention deflected away from 3 St Patrick's Terrace as a result of untrue information furnished with the connivance of the respondent and Miss Justice Laffoy was of the view that it would be absurd to allow a debtor to invoke in his defence inactivity by a county registrar brought about by him or with his connivance.

Solicitors: L. K. Shields (Dublin) for the applicant; Denis McSweeney (Dublin) for the respondent.

Sean Gillane Barrister