Re Baker; ex parte The Abovenamed v Staples D.R. Re Baker; ex parte The Abovenamed v Staples D.R. [1995] FCA 703

Re Baker; ex parte The Abovenamed v Staples D.R. Re Baker; ex parte The Abovenamed v Staples D.R. [1995] FCA 703

Where a bona fide and arguable appeal has been instituted and prosecuted with diligence in respect of the judgment upon which a bankruptcy notice is founded, it is appropriate for the Court to extend time for compliance with the notice until determination of the appeal without inquiring into detailed prospects of success, unless the appeal is hopeless or was brought solely for delay.

Jurisdiction
Australia
Judgment Date
04 September 1995
Procedural Posture
Bankruptcy Application / Application to Extend Time for Compliance With Bankruptcy Notice
Outcome
time for compliance with bankruptcy notice extended; costs awarded to applicants
Legal Topics
['extension of Time for Compliance' 'bankruptcy Notice' 'co Surety Contribution']
['bankruptcy'] ['extension of Time for Compliance' 'bankruptcy Notice' 'co Surety Contribution']

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Court must consider prospects of success when deciding to extend time under s 41(6A) Bankruptcy Act 1966' 'Whether the extension of time for compliance with the bankruptcy notice should be granted in light of arguable appeal' 'Whether a claim for contribution by a co-surety can succeed if payment was not made by the claimant']

Ratio Decidendi

Where a bona fide and arguable appeal has been instituted and prosecuted with diligence in respect of the judgment upon which a bankruptcy notice is founded, it is appropriate for the Court to extend time for compliance with the notice until determination of the appeal without inquiring into detailed prospects of success, unless the appeal is hopeless or was brought solely for delay.

Court Disposition

time for compliance with bankruptcy notice extended; costs awarded to applicants

Orders

  • ['The time for compliance with the bankruptcy notice be extended until the determination of the appeal.' 'The judgment creditor pay the costs of and incidental to this application.']