D.D.S. Downhole Data Systems Ltd. (Bankrupt), Re, (1998) 238 A.R. 368 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 09, 1998
• Citations: (1998), 238 A.R. 368 (QB)

DDS Downhole Data Systems Ltd., Re (1998), 238 A.R. 368 (QB)

MLB headnote and full text

Temp. Cite: [1998] A.R. TBEd. SE.091

In the Matter of the Bankruptcy of D.D.S. Downhole Data Systems Ltd.

(Action No. 68764)

Indexed As: D.D.S. Downhole Data Systems Ltd. (Bankrupt), Re

Alberta Court of Queen's Bench

In Bankruptcy

Judicial District of Edmonton

Bielby, J.

September 9, 1998.

Summary:

The plaintiffs sought to amend a petition seeking a receiving order against D.D.S. Downhole Data Systems Ltd., by substituting DK petroleum for one Joe Bond as peti­tioner.

The Alberta Court of Queen's Bench, In Bankruptcy, dismissed the application.

Bankruptcy - Topic 1922

Receiving order - Application or petition into bankruptcy - Persons entitled to apply - [See Practice - Topic 603 ].

Bankruptcy - Topic 1935

Receiving order - Application or petition into bankruptcy - Defects - Curing of - [See Practice - Topic 603 ].

Bankruptcy - Topic 1937

Receiving order - Application or petition into bankruptcy - Amendment of - [See Practice - Topic 603 ].

Bankruptcy - Topic 1985

Receiving order - Practice - Substitution of petitioner - [See Practice - Topic 603 ].

Practice - Topic 603

Parties - Adding or substituting parties - General principles - Bars - The plaintiffs sought to amend a petition seeking a re­ceiving order against D.D.S. Downhole Data Systems Ltd. (DDS), by substituting DK petroleum for one Joe Bond as pe­titioner - The Alberta Court of Queen's Bench, In Bankruptcy, dismissed the ap­plication and declared the petition a nullity - Particularly, Bond was not, nor had he ever been a creditor of DDS - To file a petition it was necessary to be a creditor (Bankruptcy and Insolvency Act, s. 43(1)) - The petition could not now be made whole through amendment.

Practice - Topic 652

Parties - Adding or substituting plaintiffs - Cir­cumstances when denied - [See Practice - Topic 602 ].

Cases Noticed:

Thomas (Bankrupt), Re (1922), 2 C.B.R. 356 (Ont. S.C.), refd to. [para. 7].

Hodges (Frank) Agency Inc. (1989), 75 C.B.R.(N.S.) 198 (Ont. S.C.), refd to. [para. 11].

Dhillon (Bankrupt), Re (1997), 49 C.B.R.(3d) 24; 1997 B.C.T.C. Uned. D30 (S.C.), refd to. [para. 16].

Robinson Engineering Co. et al. v. Wasabi Resources Ltd. (1988), 93 A.R. 321 (Q.B.), refd to. [para. 18].

Frank v. Canada (Minister of Indian and Northern Affairs) (1988), 88 A.R. 241 (C.A.), refd to. [para. 18].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, rule 4 [para. 13].

Rules of Court (Alta.), rule 38(2) [para. 17].

Authors and Works Noticed:

Driedger, E.A., Construction of Statutes (2d Ed.), p. 121 [para. 15].

Houlden, L.W., and Morawetz, C.H., Bank­ruptcy and Insolvency Law of Canada (3rd Ed.), vol. 1, pp. 2-20 [para. 6]; 2-22 [para. 11].

Counsel:

Jennifer L. Madsen, for Terry Kirk and D.K. Petroleum Materials and Services Inc.;

Donald J. Taylor, for D.D.S. Downhole Data Systems Ltd.

This application was heard before Bielby, J., of the Alberta Court of Queen's Bench, In Bankruptcy, Judicial District of Edmonton, who delivered the following decision on September 9, 1998.