Re Bonney, John Owen & Anor Ex Parte Bonney, John Owen & Anor v McAuliffe, Daniel & Anor [1996] FCA 487

Re Bonney, John Owen & Anor Ex Parte Bonney, John Owen & Anor v McAuliffe, Daniel & Anor [1996] FCA 487

The affidavit relied on by the applicants was filed on 4 January 1996, after expiration of the 28-day period for compliance with the bankruptcy notice served on the applicants. Accordingly s 41(7) did not extend time, and having regard to the earlier unsuccessful proceedings to set aside the judgment, the Court had no power under s 41(6A) to set aside the bankruptcy notice. The application was therefore dismissed.

Jurisdiction
Australia
Judgment Date
13 May 1996
Procedural Posture
Bankruptcy Application / Application to Set Aside Bankruptcy Notice and for Declaration of Counter Claim, Set Off or Cross Demand
Outcome
Application dismissed with costs.
Legal Topics
['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance' 'act of Bankruptcy' 'application to Set Aside Bankruptcy Notice']
['bankruptcy'] ['bankruptcy Notice' 'counter Claim, Set Off or Cross Demand' 'extension of Time for Compliance' 'act of Bankruptcy' 'application to Set Aside Bankruptcy Notice']

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Procedural Posture

Bankruptcy Application / Application to Set Aside Bankruptcy Notice and for Declaration of Counter Claim, Set Off or Cross Demand

Legal Issues

  1. 1 ['Whether the applicants filed an affidavit asserting a counter-claim, set-off or cross demand before the expiration of the time fixed for compliance with the bankruptcy notice so as to obtain an extension under s 41(7) of the Bankruptcy Act 1966.' 'Whether the Court had power to set aside the bankruptcy notice or extend time under s 41(6A) of the Bankruptcy Act 1966.' 'Whether non-compliance with the bankruptcy notice constituted an act of bankruptcy.']

Ratio Decidendi

The affidavit relied on by the applicants was filed on 4 January 1996, after expiration of the 28-day period for compliance with the bankruptcy notice served on the applicants. Accordingly s 41(7) did not extend time, and having regard to the earlier unsuccessful proceedings to set aside the judgment, the Court had no power under s 41(6A) to set aside the bankruptcy notice. The application was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application filed 4 January 1996 be dismissed.' 'The applicants on that application pay the costs of the respondents of the application, including reserved costs, to be taxed if not agreed.']