Re Udowenko, Michael & Ors Ex Parte Mitchell, Alan Bernard [1996] FCA 879

Re Udowenko, Michael & Ors Ex Parte Mitchell, Alan Bernard [1996] FCA 879

The extended time for compliance expired on 4 June 1996. No proceeding to set aside the Dungog judgment had been instituted before that date, and the Debtors' earlier application to set aside the bankruptcy notice, although filed before expiry, had been dismissed earlier on 4 June 1996 and was no longer on foot when the extended time expired. Because there was no subsisting proceeding or application satisfying s 41(6A) to which an extension of time could be ancillary, the Court lacked power to extend time.

Jurisdiction
Australia
Judgment Date
09 October 1996
Procedural Posture
Bankruptcy Application Concerning Extension of Time for Compliance With Bankruptcy Notice and Setting Aside Bankruptcy Notice / Hearing of Debtors' Application for Extension of Time for Compliance With Bankruptcy Notice; Creditor's Petition Pending
Outcome
The Debtors' application for extension of time for compliance with the bankruptcy notice was dismissed; costs ordered in favour of Alan Bernard Mitchell; remaining application to set aside the bankruptcy notice and the creditor's petition were listed for further hearing.
Legal Topics
['bankruptcy Notice' 'extension of Time for Compliance' 'application to Set Aside Bankruptcy Notice' "creditor's Petition" 'act of Bankruptcy' 'jurisdiction Under Bankruptcy Act 1966, S 41']
['bankruptcy Law'] ['bankruptcy Notice' 'extension of Time for Compliance' 'application to Set Aside Bankruptcy Notice' "creditor's Petition" 'act of Bankruptcy' 'jurisdiction Under Bankruptcy Act 1966, S 41']

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Procedural Posture

Bankruptcy Application Concerning Extension of Time for Compliance With Bankruptcy Notice and Setting Aside Bankruptcy Notice / Hearing of Debtors' Application for Extension of Time for Compliance With Bankruptcy Notice; Creditor's Petition Pending

Legal Issues

  1. 1 ['Whether the Court had power under Bankruptcy Act 1966, s 41(6A) to extend time for compliance with a bankruptcy notice where an application to set aside the bankruptcy notice had been filed before expiry but dismissed before the extended time for compliance expired, and a further application was filed after expiry.' 'Whether, if power existed, the discretion to extend time should be exercised.']

Ratio Decidendi

The extended time for compliance expired on 4 June 1996. No proceeding to set aside the Dungog judgment had been instituted before that date, and the Debtors' earlier application to set aside the bankruptcy notice, although filed before expiry, had been dismissed earlier on 4 June 1996 and was no longer on foot when the extended time expired. Because there was no subsisting proceeding or application satisfying s 41(6A) to which an extension of time could be ancillary, the Court lacked power to extend time.

Court Disposition

The Debtors' application for extension of time for compliance with the bankruptcy notice was dismissed; costs ordered in favour of Alan Bernard Mitchell; remaining application to set aside the bankruptcy notice and the creditor's petition were listed for further hearing.

Orders

  • ["The Debtors' application filed on 1 October 1996, in so far as it seeks the relief referred to in para (1) thereof, be dismissed." 'The Debtors pay the costs of Alan Bernard Mitchell of the hearing on 1 October 1996.' "The Debtors' application otherwise be listed on Monday 14 October 1996 at 9.30 am before...