Re Carter, C. & Anor Ex parte National Mutual Trustees Ltd [1995] FCA 230

Re Carter, C. & Anor Ex parte National Mutual Trustees Ltd [1995] FCA 230

Where, within the time for compliance with a bankruptcy notice, a proceeding to set aside the judgment upon which the notice is based has been instituted and is pending, the Court retains jurisdiction under s. 41(6A) of the Bankruptcy Act 1966 to extend the time for compliance, even if the application for extension is made after the expiration of the notice period.

Parties
Debtor: Colin Carter; Debtor: Nell Christine Carter; Creditor: National Mutual Trustees Limited
Jurisdiction
Australia
Judgment Date
11 April 1995
Procedural Posture
Bankruptcy Application / Separate Question (jurisdictional Power)
Outcome
Separate question answered: Court has power under s. 41(6A) to extend time in these circumstances.
Legal Topics
Bankruptcy Notice, Extension of Time, Court's Power to Extend Time After Expiry of Notice, Setting Aside Default Judgment
Bankruptcy Bankruptcy Notice Extension of Time Court's Power to Extend Time After Expiry of Notice Setting Aside Default Judgment

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Parties

Colin Carter

Debtor

Nell Christine Carter

Debtor

National Mutual Trustees Limited

Creditor

Procedural Posture

Bankruptcy Application / Separate Question (jurisdictional Power)

Legal Issues

  1. 1 Whether the Court has power under s. 41(6A) of the Bankruptcy Act 1966 to extend the time for compliance with a bankruptcy notice when the application is made after the expiration of the notice, but proceedings to set aside the judgment were instituted and pending throughout the currency of the notice.

Ratio Decidendi

Where, within the time for compliance with a bankruptcy notice, a proceeding to set aside the judgment upon which the notice is based has been instituted and is pending, the Court retains jurisdiction under s. 41(6A) of the Bankruptcy Act 1966 to extend the time for compliance, even if the application for extension is made after the expiration of the notice period.

Court Disposition

Separate question answered: Court has power under s. 41(6A) to extend time in these circumstances.

Orders

  • The Court answers 'Yes' to the separate question whether it has power to make an order under s. 41(6A) of the Bankruptcy Act 1966 on the agreed facts.
  • Costs of the separate question to be costs of the application filed 17 January 1995 and amended 28 March 1995.