Re Barbaro, D. v. Ex parte Amalgamated Television Services Pty Ltd [1987] FCA 693

Re Barbaro, D. v. Ex parte Amalgamated Television Services Pty Ltd [1987] FCA 693

The debtor could not rely on s.41(7) because the relevant affidavit was filed after the time for compliance had expired and an act of bankruptcy had already occurred. However, because the debtor had instituted an appeal against the judgment founding the bankruptcy notice before expiry of the time for compliance, s.41(6A) empowered the Court to extend time even though the extension application was filed after expiry. Although the appeal had suffered past delay, s.41(6C) did not bar relief because the relevant question was whether the appeal was presently being prosecuted with due diligence. The appeal was bona fide and based on substantial grounds, and the consequences of refusing an...

Jurisdiction
Australia
Judgment Date
03 December 1987
Procedural Posture
Bankruptcy / Application to Set Aside a Bankruptcy Notice and Extend Time for Compliance
Outcome
Time for compliance with the bankruptcy notice extended until further order; liberty to relist reserved; costs reserved.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim Set Off or Cross Demand' 'appeal From Judgment Founding Bankruptcy Notice' 'due Diligence' 'calculation of Interest' 'judiciary Act S.78 B Notices']
['bankruptcy' 'civil Procedure' 'constitutional Law'] ['bankruptcy Notice' 'extension of Time for Compliance' 'counter Claim Set Off or Cross Demand' 'appeal From Judgment Founding Bankruptcy Notice' 'due Diligence' 'calculation of Interest' 'judiciary Act S.78 B Notices']

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Procedural Posture

Bankruptcy / Application to Set Aside a Bankruptcy Notice and Extend Time for Compliance

Legal Issues

  1. 1 ['Whether the debtor could rely on a counter-claim set off or cross-demand under s.41(7) of the Bankruptcy Act 1966 after the time for compliance had expired.' 'Whether the Court had power under s.41(6A) of the Bankruptcy Act 1966 to extend time for compliance where an appeal against the judgment founding the bankruptcy notice had been instituted before expiry of the time for compliance.' 'Whether the appeal was being prosecuted with due diligence within s.41(6C).' 'Whether the appeal was based on substantial grounds sufficient to justify extension of time for compliance.' "Whether alleged defects in service, arising from the debtor's inability to read English, affected the bankruptcy notice." 'Whether the bankruptcy notice understated or misstated interest.' 'Whether s.41(6A) of the Bankruptcy Act 1966 was invalid on constitutional grounds and whether s.78B of the Judiciary Act 1903 required notice before relief could be granted.']

Ratio Decidendi

The debtor could not rely on s.41(7) because the relevant affidavit was filed after the time for compliance had expired and an act of bankruptcy had already occurred. However, because the debtor had instituted an appeal against the judgment founding the bankruptcy notice before expiry of the time for compliance, s.41(6A) empowered the Court to extend time even though the extension application was filed after expiry. Although the appeal had suffered past delay, s.41(6C) did not bar relief because the relevant question was whether the appeal was presently being prosecuted with due diligence. The appeal was bona fide and based on substantial grounds, and the consequences of refusing an...

Court Disposition

Time for compliance with the bankruptcy notice extended until further order; liberty to relist reserved; costs reserved.

Orders

  • ['That the time for compliance with the bankruptcy notice referred to in the application be extended until further order.' "That liberty be reserved to either party to apply to the Registrar for relisting of the application on a date which will permit the giving of 7 days' notice to the other party." 'That costs be...