Re Guss, Joseph Ex Parte Guss, Jospeh v Johnstone, Raymond Marshall [1996] FCA 458

Re Guss, Joseph Ex Parte Guss, Jospeh v Johnstone, Raymond Marshall [1996] FCA 458

Because the time for compliance with the bankruptcy notice had expired, the Court had already declared it was not satisfied under s 41(7), and an act of bankruptcy had occurred, it was inappropriate as a matter of practice and procedure to allow an application to set aside the bankruptcy notice to proceed before the hearing of the petition. Alleged invalidity of the bankruptcy notice or judgment debt could be raised as opposition to the petition. The substantive application was therefore futile, so abridgment of time for service was refused.

Jurisdiction
Australia
Judgment Date
05 June 1996
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice and Abridge Time for Service; Related Applications Adjourned
Outcome
Abridgment of time for service refused; applications adjourned; costs ordered against the debtor.
Legal Topics
['bankruptcy Notice' 'abridgment of Time for Service' 'act of Bankruptcy' "creditor's Petition" 'setting Aside Bankruptcy Notice']
['bankruptcy' 'civil Procedure'] ['bankruptcy Notice' 'abridgment of Time for Service' 'act of Bankruptcy' "creditor's Petition" 'setting Aside Bankruptcy Notice']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice and Abridge Time for Service; Related Applications Adjourned

Legal Issues

  1. 1 ["Whether time for service of the debtor's application to set aside the bankruptcy notice should be abridged." 'Whether an application to set aside a bankruptcy notice should proceed after the time for compliance has expired and an act of bankruptcy has occurred.' "Whether alleged invalidity of the bankruptcy notice or judgment debt should instead be raised as opposition at the hearing of the creditor's petition."]

Ratio Decidendi

Because the time for compliance with the bankruptcy notice had expired, the Court had already declared it was not satisfied under s 41(7), and an act of bankruptcy had occurred, it was inappropriate as a matter of practice and procedure to allow an application to set aside the bankruptcy notice to proceed before the hearing of the petition. Alleged invalidity of the bankruptcy notice or judgment debt could be raised as opposition to the petition. The substantive application was therefore futile, so abridgment of time for service was refused.

Court Disposition

Abridgment of time for service refused; applications adjourned; costs ordered against the debtor.

Orders

  • ['The application to abridge time for service of the application filed on 4 June 1996 was refused.' 'The hearings of the application to set aside the bankruptcy notice and the application filed on 30 May 1996 were adjourned to a date to be fixed, being no later than the date of the hearing of the petition in VP455...