Re Perry, Emily Phyllis Gertrude Ex Parte Johnston Withers & Associates [1996] FCA 402

Re Perry, Emily Phyllis Gertrude Ex Parte Johnston Withers & Associates [1996] FCA 402

Because Mrs Perry had not instituted proceedings to set aside the judgment before the time for compliance expired and did not file her application to set aside the bankruptcy notice until after that time, neither paragraph (a) nor paragraph (b) of s 41(6A) could be invoked. Section 33 did not confer any general power to extend the time for compliance with a bankruptcy notice. The Court therefore had no jurisdiction to extend time; Mrs Perry committed an act of bankruptcy by failing to comply by midnight on 9 April 1996, and no point would be served by considering the application to set aside the notice.

Jurisdiction
Australia
Judgment Date
27 May 1996
Procedural Posture
Bankruptcy Application / Application by Debtor for Extension of Time to Comply With Bankruptcy Notice and to Set Aside Bankruptcy Notice
Outcome
The debtor's application dated 24 April 1996 was dismissed.
Legal Topics
['extension of Time to Comply With Bankruptcy Notice' 'application to Set Aside Bankruptcy Notice' 'jurisdiction' 'act of Bankruptcy' 'going Behind Judgment']
['bankruptcy'] ['extension of Time to Comply With Bankruptcy Notice' 'application to Set Aside Bankruptcy Notice' 'jurisdiction' 'act of Bankruptcy' 'going Behind Judgment']

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Procedural Posture

Bankruptcy Application / Application by Debtor for Extension of Time to Comply With Bankruptcy Notice and to Set Aside Bankruptcy Notice

Legal Issues

  1. 1 ["Whether the Court had jurisdiction to extend the time for compliance with the bankruptcy notice where the debtor's application to set aside the bankruptcy notice was filed after the time fixed for compliance had expired." "Whether the Court should consider the debtor's application to set aside the bankruptcy notice after an act of bankruptcy had already been committed." 'Whether the debtor could seek at the petition stage to show that no real debt lay behind the judgment referred to in the bankruptcy notice.']

Ratio Decidendi

Because Mrs Perry had not instituted proceedings to set aside the judgment before the time for compliance expired and did not file her application to set aside the bankruptcy notice until after that time, neither paragraph (a) nor paragraph (b) of s 41(6A) could be invoked. Section 33 did not confer any general power to extend the time for compliance with a bankruptcy notice. The Court therefore had no jurisdiction to extend time; Mrs Perry committed an act of bankruptcy by failing to comply by midnight on 9 April 1996, and no point would be served by considering the application to set aside the notice.

Court Disposition

The debtor's application dated 24 April 1996 was dismissed.

Orders

  • ['The application of the debtor dated 24 April 1996 is dismissed.']