Kyrwood v Drinkwater [1999] FCA 1617

Kyrwood v Drinkwater [1999] FCA 1617

Leave to amend was refused because the amendment was sought at a late stage, the pending appeal was relevant but not controlling, the applicants had not complied with the condition of the Court of Appeal stay requiring security for the respondents' costs, and the creditor respondents would be unduly disadvantaged by the delay while awaiting the appeal decision.

Jurisdiction
Australia
Judgment Date
19 November 1999
Procedural Posture
Bankruptcy Application Concerning a Bankruptcy Notice / Application for Leave to Amend an Application for an Extension of Time to Comply With a Bankruptcy Notice
Outcome
Leave to amend refused; applicants ordered to pay the respondents' costs of the application.
Legal Topics
['bankruptcy Notice' 'extension of Time to Comply With Bankruptcy Notice' 'amendment of Application' 'appeal From Judgment Debt' 'stay of Judgment Debt' 'security for Costs' 'creditor Interests' 'delay']
['bankruptcy' 'practice and Procedure'] ['bankruptcy Notice' 'extension of Time to Comply With Bankruptcy Notice' 'amendment of Application' 'appeal From Judgment Debt' 'stay of Judgment Debt' 'security for Costs' 'creditor Interests' 'delay']

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Procedural Posture

Bankruptcy Application Concerning a Bankruptcy Notice / Application for Leave to Amend an Application for an Extension of Time to Comply With a Bankruptcy Notice

Legal Issues

  1. 1 ['Whether the debtors should have leave to amend their application for an extension of time within which to comply with a bankruptcy notice under s 41 of the Bankruptcy Act 1966 (Cth).' 'Whether an extension of time should be pursued under s 41(6A) where an appeal from the judgment debt is pending and a stay was ordered on condition that security be lodged, but no security had been lodged.']

Ratio Decidendi

Leave to amend was refused because the amendment was sought at a late stage, the pending appeal was relevant but not controlling, the applicants had not complied with the condition of the Court of Appeal stay requiring security for the respondents' costs, and the creditor respondents would be unduly disadvantaged by the delay while awaiting the appeal decision.

Court Disposition

Leave to amend refused; applicants ordered to pay the respondents' costs of the application.

Orders

  • ['Leave is refused to the applicants to amend their application for an extension of time.' 'The applicants are to pay the costs of the respondents of this application.']