Whitton J:

The first of Mr. Macassey's further objections is that the statement of affairs should have been exhibited to the Affidavit and has not been.In support of this objection he relies on rr. 14, 15, 16, 18 and 273 of the Bankruptcy Rules and on the recent Penang decision in Re Mohamed Yusoff Meera Hussein & Anor. [1954] MLJ 45. Now the effect of r. 273 far as proceedings under s. 114 are concerned is clearly that the Official Assignee must follow the normal procedure required in applications under the Bankruptcy Ordinance, that is he must make his application by motion supported by affidavit.The question to be decided now is whether this procedure makes it imperative for the Official Assignee to exhibit the statement of affairs to the affidavit.None of the Rules cited specifically say that he must.Mr. Macassey argues, however, that in the light of the decision in Re Mohamed Yusoff Meera Hussein [1954] MLJ 45 it is necessary for the statement of affairs to be exhibited.Even if it is conceded for the sake of argument that the same considerations apply in this connection to a statement of affairs as apply to the notes of a public examination, the failure to exhibit which occasioned that part of judgment in Re Mohamed Yusoff Meera Hussein [1954] MLJ 45 Mr. Macassey now relies on, it is important to observe that Spenser Wilkinson J expressed the view that the question involved was not one of invalidating any proceedings but rather one whether there was evidence before the Court upon which it could act.To quote the relevant passage:

Section 128 is very wide in its terms, but I do not think it really assists the Official Assignee in this case.It provides that no proceeding in bankruptcy shall be invalidated by any formal defect or irregularity. I do not think, however, that there is any question here of invalidating any proceedings; it is a question rather as to whether or not there was evidence before the Court upon which it could act.

The case cannot therefore be taken as authority for the proposition that the proceedings are invalidated - and that is the point I am concerned with at the moment - by omission to exhibit the notes of the public examination to the affidavit. I hold, accordingly that there is no authority before me which justifies a ruling that it is mandatory on the Official Assignee to exhibit the statement of affairs to the affidavit, and this objection must in my view fail. I do not wish, however, by this decision to be taken as considering it is not necessary if the Official Assignee proposes to rely on the statement of affairs in support of the motion for him to give due and adequate notice of the fact to the bankrupt.

Mr. Macassey's next objection is that the third schedule to the affidavit was not served on him until 13 May, that is two days before the Motion came before the Court, and that, accordingly, r. 16 of the Bankruptcy Rules was not complied with.It is not disputed that as the result of an error the schedule in question was not served until 18 May, and that in fact what happened was that previously a document wrongly purporting to be the third schedule was served on Mr. Macassey.The Official Assignee submits that the matter can be cured by s. 128 of the Ordinance, and in reply to this submission Mr. Macassey says that this section has no application to non-service.In the absence of any statutory definition as to what is a proceeding in bankruptcy it seems to me that the service of an affidavit in support of a motion is very much part of a proceeding, and I hold that this matter comes within the scope of s. 128.The position then is that the omission to serve the schedule properly will not invalidate the proceeding "unless the Court is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the Court." Mr. Macassey does not contend that any injustice which cannot be remedied by the Court has occurred, a