Re O'Dea, M.G. v. Ex parte Fielding, D.J. & Anor [1985] FCA 509

Re O'Dea, M.G. v. Ex parte Fielding, D.J. & Anor [1985] FCA 509

The Court is empowered by s.41(6A) of the Bankruptcy Act 1966 to extend the time for compliance with the bankruptcy notice, as proceedings to set aside the judgment and an application to set aside the bankruptcy notice were both instituted before expiration of the compliance period. The creditors failed to prove the appeal was not bona fide or lacking in due diligence; therefore, an extension should be granted.

Parties
Debtor: Michael Geoffrey O'Dea; Creditor: David James Fielding; Creditor: Jean Margaret Fielding
Jurisdiction
Australia
Judgment Date
04 October 1985
Procedural Posture
Bankruptcy / Application to Amend and Extend Time for Compliance With Bankruptcy Notice
Outcome
Application for leave to amend and for extension of time granted
Legal Topics
Extension of Time to Comply With Bankruptcy Notice, Proceedings to Set Aside Judgment, Bona Fide Prosecution of Appeal, Due Diligence in Proceedings
Bankruptcy Extension of Time to Comply With Bankruptcy Notice Proceedings to Set Aside Judgment Bona Fide Prosecution of Appeal Due Diligence in Proceedings

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Parties

Michael Geoffrey O'Dea

Debtor

David James Fielding

Creditor

Jean Margaret Fielding

Creditor

Procedural Posture

Bankruptcy / Application to Amend and Extend Time for Compliance With Bankruptcy Notice

Legal Issues

  1. 1 Whether leave to amend application to seek extension of time to comply with bankruptcy notice should be granted after time for compliance had expired
  2. 2 Power of the Court to grant an extension of time for compliance with a bankruptcy notice under the Bankruptcy Act
  3. 3 Whether proceedings to set aside judgment are bona fide

Ratio Decidendi

The Court is empowered by s.41(6A) of the Bankruptcy Act 1966 to extend the time for compliance with the bankruptcy notice, as proceedings to set aside the judgment and an application to set aside the bankruptcy notice were both instituted before expiration of the compliance period. The creditors failed to prove the appeal was not bona fide or lacking in due diligence; therefore, an extension should be granted.

Court Disposition

Application for leave to amend and for extension of time granted

Orders

  • Leave granted to debtor to amend para.2 of the application to seek extension until 21 days after judgment in appeal No. 155 of 1985 to the Full Court of the Supreme Court of Western Australia.
  • Time for debtor to comply with bankruptcy notice extended until 21 days after judgment in appeal No. 155 of 1985 to the Full Court of the Supreme Court of Western Australia or until further order.