Re Italiano, Michael Ex Parte Italiano, Michael v Yanieri, Omar & Anor [1996] FCA 829

Re Italiano, Michael Ex Parte Italiano, Michael v Yanieri, Omar & Anor [1996] FCA 829

Although the Court accepted it had a discretion and was not prepared to condemn the debtor's bona fides merely on the District Court judgment, the absence of any attempt to obtain a further stay of the judgment made it inappropriate at the bankruptcy notice stage to prevent the possible commission of an act of bankruptcy; the debtor could seek an adjournment of any petition.

Jurisdiction
Australia
Judgment Date
03 September 1996
Procedural Posture
Application by Debtor for an Extension of Time to Answer a Bankruptcy Notice / Reasons for Judgment on Application
Outcome
Application refused.
Legal Topics
['extension of Time to Answer Bankruptcy Notice' 'pending Appeal Against Judgment Debt' 'stay of Judgment' 'act of Bankruptcy']
['bankruptcy'] ['extension of Time to Answer Bankruptcy Notice' 'pending Appeal Against Judgment Debt' 'stay of Judgment' 'act of Bankruptcy']

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Procedural Posture

Application by Debtor for an Extension of Time to Answer a Bankruptcy Notice / Reasons for Judgment on Application

Legal Issues

  1. 1 ['Whether the debtor should be granted an extension of time to answer a bankruptcy notice where the judgment founding the notice is under appeal.' 'Whether the absence of any further stay application after a 14 day stay should affect the exercise of discretion at the bankruptcy notice stage.']

Ratio Decidendi

Although the Court accepted it had a discretion and was not prepared to condemn the debtor's bona fides merely on the District Court judgment, the absence of any attempt to obtain a further stay of the judgment made it inappropriate at the bankruptcy notice stage to prevent the possible commission of an act of bankruptcy; the debtor could seek an adjournment of any petition.

Court Disposition

Application refused.

Orders

  • ['The application is refused.' "The debtor is to pay the creditors' costs including reserved costs."]