Re Nguyen, B H v Ex parte Deputy Commissioner of Taxation of the Commonwealth of Australia Re Pham, T T v Ex parte Deputy Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 12

Re Nguyen, B H v Ex parte Deputy Commissioner of Taxation of the Commonwealth of Australia Re Pham, T T v Ex parte Deputy Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 12

The Deputy Registrar's extension order should not have been made ex parte because the judgment creditor was affected and should generally have an opportunity to be heard. On reconsideration, the pending Hardship Board application did not justify interfering with the ordinary operation of the bankruptcy notice, as the debtor did not raise any usual ground for setting aside the notice and the material indicated insolvency. However, because the Deputy Registrar's order was regular on its face and had legal effect until set aside, it was appropriate to vary the order prospectively rather than rescind it retrospectively.

Jurisdiction
Australia
Judgment Date
12 January 1995
Procedural Posture
Bankruptcy Application Concerning Extension of Time for Compliance With Bankruptcy Notices / Judgment Creditor's Applications to Rescind, Vary or Discharge Deputy Registrar's Orders
Outcome
Judgment creditor's applications allowed; Deputy Registrar's orders varied rather than rescinded.
Legal Topics
['extension of Time for Compliance With Bankruptcy Notice' 'ex Parte Orders' 'hardship Board Application' "rescission or Variation of Registrar's Order" 'costs']
['bankruptcy' 'taxation' 'civil Procedure'] ['extension of Time for Compliance With Bankruptcy Notice' 'ex Parte Orders' 'hardship Board Application' "rescission or Variation of Registrar's Order" 'costs']

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Procedural Posture

Bankruptcy Application Concerning Extension of Time for Compliance With Bankruptcy Notices / Judgment Creditor's Applications to Rescind, Vary or Discharge Deputy Registrar's Orders

Legal Issues

  1. 1 ['Whether time for compliance with a bankruptcy notice should generally be extended without notice to the judgment creditor.' 'Whether a pending application under s 265(1) of the Income Tax Assessment Act 1936 (Cth) justified extending time for compliance with the bankruptcy notices.' "Whether the Deputy Registrar's extension order should be rescinded ab initio or varied prospectively."]

Ratio Decidendi

The Deputy Registrar's extension order should not have been made ex parte because the judgment creditor was affected and should generally have an opportunity to be heard. On reconsideration, the pending Hardship Board application did not justify interfering with the ordinary operation of the bankruptcy notice, as the debtor did not raise any usual ground for setting aside the notice and the material indicated insolvency. However, because the Deputy Registrar's order was regular on its face and had legal effect until set aside, it was appropriate to vary the order prospectively rather than rescind it retrospectively.

Court Disposition

Judgment creditor's applications allowed; Deputy Registrar's orders varied rather than rescinded.

Orders

  • ['The orders of Deputy Registrar Efthim made 8 December be varied so that the time for compliance with the bankruptcy notices is extended until 4.00 pm 12 January 1995.' "The judgment debtors pay the judgment creditor's costs of the application, including reserved costs."]