Re Manuel Lopes Ex Parte Patomar Pty Ltd [1995] FCA 772

Re Manuel Lopes Ex Parte Patomar Pty Ltd [1995] FCA 772

Although the Court accepted for present purposes that it had jurisdiction under s.41(6A) because a relevant application had been made within time, the judgment debtor provided no affidavit as to merits, no reasons of the Magistrate, and no material from which the Court could assess the substance or prospects of the appeal. The application to set aside the bankruptcy notice had effectively been abandoned, and no basis was shown to doubt that the judgment was proper, bona fide and supported by true consideration. In those circumstances, and where an extension of about six months was sought, the discretion to extend time for compliance with the bankruptcy notice should not be exercised.

Jurisdiction
Australia
Judgment Date
20 September 1995
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice or Alternatively Extend Time for Compliance; Set Aside Relief Not Pursued and Only Extension of Time Pressed
Outcome
Application dismissed; extension of time for compliance with bankruptcy notice refused.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' 'default Judgment' 'application to Set Aside Judgment' 'appeal From Magistrates Court to District Court' 'discretion Under S.41(6 A)']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'extension of Time for Compliance' 'default Judgment' 'application to Set Aside Judgment' 'appeal From Magistrates Court to District Court' 'discretion Under S.41(6 A)']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice or Alternatively Extend Time for Compliance; Set Aside Relief Not Pursued and Only Extension of Time Pressed

Legal Issues

  1. 1 ['Whether the appeal to the District Court should be treated as a proceeding to set aside the judgment within the meaning of s.41(6A) of the Bankruptcy Act 1966 (Cth).' 'Whether the Court should extend time for compliance with the bankruptcy notice until 31 March 1996 where the application to set aside the bankruptcy notice was abandoned and there was no material as to the merits or prospects of the appeal.']

Ratio Decidendi

Although the Court accepted for present purposes that it had jurisdiction under s.41(6A) because a relevant application had been made within time, the judgment debtor provided no affidavit as to merits, no reasons of the Magistrate, and no material from which the Court could assess the substance or prospects of the appeal. The application to set aside the bankruptcy notice had effectively been abandoned, and no basis was shown to doubt that the judgment was proper, bona fide and supported by true consideration. In those circumstances, and where an extension of about six months was sought, the discretion to extend time for compliance with the bankruptcy notice should not be exercised.

Court Disposition

Application dismissed; extension of time for compliance with bankruptcy notice refused.

Orders

  • ['Leave granted to the applicant to amend the application filed 4 August 1995 to read in paragraph 1: "..... issued by the Respondent to 31 March 1996;"' 'The application filed 4 August 1995 be dismissed.' "The applicant pay the respondent's costs of and incidental to the application to be taxed."]