Re: Smith, Peter, D. & Anor [1987] FCA 214

Re: Smith, Peter, D. & Anor [1987] FCA 214

Although the appeal was instituted bona fide and was not shown to lack due diligence, s.41(6A) conferred a discretion. The Court refused to extend time because the appeal points were essentially technical or procedural, there was no real dispute that some such sum was owing, and the material suggested the debtors' real purpose was to gain time.

Jurisdiction
Australia
Judgment Date
24 April 1987
Procedural Posture
Bankruptcy Application for Extension of Time for Compliance With a Bankruptcy Notice / Application Heard After Service of Bankruptcy Notice; Ex Tempore Reasons and Orders
Outcome
Application dismissed with costs.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' "court's Discretion" 'appeal From Judgment Debt']
['bankruptcy'] ['bankruptcy Notice' 'extension of Time for Compliance' "court's Discretion" 'appeal From Judgment Debt']

Case Brief

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Procedural Posture

Bankruptcy Application for Extension of Time for Compliance With a Bankruptcy Notice / Application Heard After Service of Bankruptcy Notice; Ex Tempore Reasons and Orders

Legal Issues

  1. 1 ['Whether the Court should extend time for compliance with the bankruptcy notice under s.41(6A) of the Bankruptcy Act 1966.' 'Whether s.41(6C) prevented an extension because the appeal proceedings were not instituted bona fide or were not being prosecuted with due diligence.' 'Whether the Court should exercise its residual discretion to refuse an extension where the appeal raised essentially technical points and the judgment debt was substantially due.']

Ratio Decidendi

Although the appeal was instituted bona fide and was not shown to lack due diligence, s.41(6A) conferred a discretion. The Court refused to extend time because the appeal points were essentially technical or procedural, there was no real dispute that some such sum was owing, and the material suggested the debtors' real purpose was to gain time.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application for an extension of time for compliance filed on 27 March 1987 is dismissed.' "The applicant pay the respondent's costs of and incidental to the application to be taxed."]