Wilhelmsen, Re K.B. Ex Parte Gould, S.G. & Ors [1986] FCA 192
The Court has power to extend the time for issuing a notice under s.41(5), as this is not excluded by s.33(1)(c), and the circumstances justify exercising that power in favour of the debtor; as such, the bankruptcy notice claiming an excessive sum is invalid and should be set aside.
- Parties
- Debtor: Kai Borge Wilhelmsen; Creditor: Sydney George Gould; Creditor: John Clark; Creditor: Paul Norman Flanagan; Creditor: Yvonne Marie Flanagan; Creditor: Thomas Israel Cook; Creditor: Doris Cook; Creditor: Alexander Bowring; Creditor: Evelyn Ruth Bowring; Creditor: Gladys Irene Clegg; Creditor: John Robinson; Creditor: Violet Robinson; Creditor: Graham Edwin Nicholls; Creditor: Kerry Bishop; Creditor: Richard Thompson; Creditor: Mary Thompson; Creditor: Ian James; Creditor: Carol James; Creditor: Betty Goodall; Creditor: Betty Herz; Creditor: Kenneth George Sforcina; Creditor: Meta Coral Sforcina; Creditor: Kimlee Pty. Ltd.; Creditor: Ian Flanagan; Creditor: Tanya Flanagan; Creditor: Maxine Kay Taylor; Creditor: Helen Margaret Gould; Creditor: Bruce Macdonald Ross; Creditor: Roma Constance Ross; Creditor: Norton Peters; Creditor: Craig Davis; Creditor: Graham Walter Tickle; Creditor: Barbara Mary Tickle
- Jurisdiction
- Australia
- Judgment Date
- 16 May 1986
- Procedural Posture
- Bankruptcy Proceeding / Application to Set Aside Bankruptcy Notice
- Outcome
- application granted
- Legal Topics
- Bankruptcy Notice, Excessive Sum, Extension of Time
Case Brief
Summary, issues, holding and outcome
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Parties
Kai Borge Wilhelmsen
Debtor
Sydney George Gould
Creditor
John Clark
Creditor
Paul Norman Flanagan
Creditor
Yvonne Marie Flanagan
Creditor
Thomas Israel Cook
Creditor
Doris Cook
Creditor
Alexander Bowring
Creditor
Evelyn Ruth Bowring
Creditor
Gladys Irene Clegg
Creditor
John Robinson
Creditor
Violet Robinson
Creditor
Graham Edwin Nicholls
Creditor
Kerry Bishop
Creditor
Richard Thompson
Creditor
Mary Thompson
Creditor
Ian James
Creditor
Carol James
Creditor
Betty Goodall
Creditor
Betty Herz
Creditor
Kenneth George Sforcina
Creditor
Meta Coral Sforcina
Creditor
Kimlee Pty. Ltd.
Creditor
Ian Flanagan
Creditor
Tanya Flanagan
Creditor
Maxine Kay Taylor
Creditor
Helen Margaret Gould
Creditor
Bruce Macdonald Ross
Creditor
Roma Constance Ross
Creditor
Norton Peters
Creditor
Craig Davis
Creditor
Graham Walter Tickle
Creditor
Barbara Mary Tickle
Creditor
Procedural Posture
Bankruptcy Proceeding / Application to Set Aside Bankruptcy Notice
Legal Issues
- 1 Whether a bankruptcy notice claiming an excessive sum should be set aside
- 2 Whether the time for giving notice under s.41(5) of the Bankruptcy Act can be extended
Ratio Decidendi
The Court has power to extend the time for issuing a notice under s.41(5), as this is not excluded by s.33(1)(c), and the circumstances justify exercising that power in favour of the debtor; as such, the bankruptcy notice claiming an excessive sum is invalid and should be set aside.
Court Disposition
application granted
Orders
- The time for giving notice under s.41(5) of the Bankruptcy Act is extended until 22 April 1986.
- The bankruptcy notice is set aside.
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