Deputy Commissioner of Taxation v Peter Leopold Clyne [1984] FCA 383

Deputy Commissioner of Taxation v Peter Leopold Clyne [1984] FCA 383

The sequestration order made on 7 October 1983 was an order of a superior court of record and, although later set aside by the High Court as beyond power, it was not a nullity. Because a sequestration order was made on the creditor's petition within 12 months of its presentation, s.52(4) did not cause the petition to lapse; the question of extending time therefore did not arise.

Jurisdiction
Australia
Judgment Date
16 November 1984
Procedural Posture
Bankruptcy / Stated Case / Questions Reserved to a Full Court During Hearing of a Creditor's Petition
Outcome
Questions answered in favour of the petitioning creditor; creditor's petition held not to have lapsed and remitted for further hearing.
Legal Topics
["lapse of Creditor's Petition" 'sequestration Order Set Aside on Appeal' 'validity and Effect of Orders of a Superior Court of Record' 'extension of Time Under S.52(5) of the Bankruptcy Act 1966']
['bankruptcy Law' 'federal Court Jurisdiction and Procedure'] ["lapse of Creditor's Petition" 'sequestration Order Set Aside on Appeal' 'validity and Effect of Orders of a Superior Court of Record' 'extension of Time Under S.52(5) of the Bankruptcy Act 1966']

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Procedural Posture

Bankruptcy / Stated Case / Questions Reserved to a Full Court During Hearing of a Creditor's Petition

Legal Issues

  1. 1 ['Whether, within the meaning of s.52(4) of the Bankruptcy Act 1966, a sequestration order was made on the petition on 7 October 1983 although it was later set aside by the High Court.' 'Whether the Court had power to extend the period at the expiration of which the petition would lapse to 3 January 1985 if no sequestration order had been made within s.52(4).' "Whether the creditor's petition had lapsed within the meaning of s.52(4)."]

Ratio Decidendi

The sequestration order made on 7 October 1983 was an order of a superior court of record and, although later set aside by the High Court as beyond power, it was not a nullity. Because a sequestration order was made on the creditor's petition within 12 months of its presentation, s.52(4) did not cause the petition to lapse; the question of extending time therefore did not arise.

Court Disposition

Questions answered in favour of the petitioning creditor; creditor's petition held not to have lapsed and remitted for further hearing.

Orders

  • ['Question (a) answered: YES.' 'Question (b) answered: DOES NOT ARISE.' 'Question (c) answered: NO.' 'The respondent pay to the applicant his costs of the Stated Case.' 'The petition be remitted to St. John J. for further hearing.']