Re De Vere, Gary Raymond Ex Parte De Vere, Gary Raymond & Anor [1995] FCA 1093

Re De Vere, Gary Raymond Ex Parte De Vere, Gary Raymond & Anor [1995] FCA 1093

The bankruptcy notice required compliance within 14 days from, and excluding, 4 October 1995. The material filed on 3 November 1995 was not filed before the expiration of the time fixed for compliance. Neither proceedings to set aside the judgment or order nor an application to set aside the bankruptcy notice was filed within that time. Because the statutory preconditions in s 41(7) and s 41(6A) were not met, and s 33 did not permit an extension contrary to those express requirements, the Court had no power to make the orders sought.

Jurisdiction
Australia
Judgment Date
15 December 1995
Procedural Posture
Bankruptcy Proceeding / Applications to Set Aside a Bankruptcy Notice and to Extend Time for Filing the Application; Consent Order Deeming Service of Creditor's Petition Good Service
Outcome
The applications filed by the debtor on 3 November 1995 and 15 December 1995 were dismissed; the applicant was ordered to pay the Deputy Commissioner of Taxation's costs; service of Petition No. 647 of 1995 was deemed good service by consent.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim, Set Off or Cross Demand' "service of Creditor's Petition" 'costs']
['bankruptcy Law'] ['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim, Set Off or Cross Demand' "service of Creditor's Petition" 'costs']

Case Brief

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Procedural Posture

Bankruptcy Proceeding / Applications to Set Aside a Bankruptcy Notice and to Extend Time for Filing the Application; Consent Order Deeming Service of Creditor's Petition Good Service

Legal Issues

  1. 1 ['Whether an affidavit under s 41(7) of the Bankruptcy Act 1966 was filed before the expiration of the time fixed for compliance with the bankruptcy notice.' 'Whether the Court had power under s 41(6A) of the Bankruptcy Act 1966 to extend the time for compliance with the bankruptcy notice.' 'Whether the Court should set aside the bankruptcy notice.']

Ratio Decidendi

The bankruptcy notice required compliance within 14 days from, and excluding, 4 October 1995. The material filed on 3 November 1995 was not filed before the expiration of the time fixed for compliance. Neither proceedings to set aside the judgment or order nor an application to set aside the bankruptcy notice was filed within that time. Because the statutory preconditions in s 41(7) and s 41(6A) were not met, and s 33 did not permit an extension contrary to those express requirements, the Court had no power to make the orders sought.

Court Disposition

The applications filed by the debtor on 3 November 1995 and 15 December 1995 were dismissed; the applicant was ordered to pay the Deputy Commissioner of Taxation's costs; service of Petition No. 647 of 1995 was deemed good service by consent.

Orders

  • ['The applications filed by the debtor on 3 November 1995 and 15 December 1995 are dismissed.' 'The applicant pay the costs, of and incidental to the applications, of the Deputy Commissioner of Taxation, including any reserved costs, to be taxed if not agreed.' 'By consent, service of Petition No. 647 of 1995 on...