Rose v Howell [1999] FCA 1515

Rose v Howell [1999] FCA 1515

The debtor's ground for setting aside the bankruptcy notice was that he had applied to set aside the District Court judgment underlying the notice. Although that judgment was set aside on 30 July 1999, it was set aside only on terms, and after the debtor defaulted the judgment was re-entered on 8 October 1999. As at 26 October 1999, the foundation for the application to set aside the bankruptcy notice had failed, and there was no evidentiary basis for a further extension of time.

Jurisdiction
Australia
Judgment Date
26 October 1999
Procedural Posture
Application to Set Aside a Bankruptcy Notice / Ex Tempore Reasons for Judgment and Orders
Outcome
Application to set aside the bankruptcy notice dismissed.
Legal Topics
['bankruptcy Notice' 'application to Set Aside Bankruptcy Notice' 'extension of Time for Compliance With Bankruptcy Notice' 'setting Aside and Re Entry of District Court Judgment' 'act of Bankruptcy' 'sequestration Order Discretion']
['bankruptcy and Insolvency' 'civil Procedure'] ['bankruptcy Notice' 'application to Set Aside Bankruptcy Notice' 'extension of Time for Compliance With Bankruptcy Notice' 'setting Aside and Re Entry of District Court Judgment' 'act of Bankruptcy' 'sequestration Order Discretion']

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Procedural Posture

Application to Set Aside a Bankruptcy Notice / Ex Tempore Reasons for Judgment and Orders

Legal Issues

  1. 1 ['Whether the bankruptcy notice should be set aside where the District Court judgment on which it was based had been set aside on terms but then re-entered after the debtor defaulted on those terms.' 'Whether time for compliance with the bankruptcy notice should be further extended based on a foreshadowed application to set aside the re-entered District Court judgment.']

Ratio Decidendi

The debtor's ground for setting aside the bankruptcy notice was that he had applied to set aside the District Court judgment underlying the notice. Although that judgment was set aside on 30 July 1999, it was set aside only on terms, and after the debtor defaulted the judgment was re-entered on 8 October 1999. As at 26 October 1999, the foundation for the application to set aside the bankruptcy notice had failed, and there was no evidentiary basis for a further extension of time.

Court Disposition

Application to set aside the bankruptcy notice dismissed.

Orders

  • ['The application to set aside the bankruptcy notice be dismissed.' "The respondent pay the applicant's costs of the application."]