Lamb v Sherman [2023] FCAFC 85

Lamb v Sherman [2023] FCAFC 85

Ms Lamb did not make an application to the Court within the meaning of s 41(6A) when her solicitors electronically lodged the application at 4:37pm on 15 June 2022. Because r 2.01(1)(a) required the application to be made by filing, and r 2.25(3) deemed an electronically lodged document received after 4:30pm to be filed, if accepted, on the next business day, the application was not made until 16 June 2022. By then the time for compliance with the bankruptcy notice had expired and Ms Lamb had committed an act of bankruptcy on 15 June 2022. The Registrar's later extension orders could not cure or affect that earlier act of bankruptcy and were made without jurisdiction. The petition could...

Jurisdiction
Australia
Judgment Date
25 May 2023
Procedural Posture
Bankruptcy and Insolvency Appeal From Making of Sequestration Order / Full Court Appeal, With Application to Review Registrar's Extension Orders and Application to Amend Creditor's Petition
Outcome
Appeal dismissed; respondent's application to review the Registrar's extension orders allowed; extension orders set aside; respondent's application to amend the petition dismissed.
Legal Topics
['sequestration Order' 'bankruptcy Notice' 'act of Bankruptcy' 'electronic Lodgment and Filing' 'extension of Time for Compliance With Bankruptcy Notice' "creditor's Petition" "review of Registrar's Orders"]
['bankruptcy and Insolvency' 'practice and Procedure'] ['sequestration Order' 'bankruptcy Notice' 'act of Bankruptcy' 'electronic Lodgment and Filing' 'extension of Time for Compliance With Bankruptcy Notice' "creditor's Petition" "review of Registrar's Orders"]

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Procedural Posture

Bankruptcy and Insolvency Appeal From Making of Sequestration Order / Full Court Appeal, With Application to Review Registrar's Extension Orders and Application to Amend Creditor's Petition

Legal Issues

  1. 1 ['Whether an application to set aside a bankruptcy notice under s 41(6A) of the Bankruptcy Act 1966 (Cth) is made when electronically lodged after 4:30pm or when accepted for filing.' 'Whether Ms Lamb committed an act of bankruptcy on 15 June 2022 by failing to comply with the bankruptcy notice within the time fixed for compliance.' "Whether the Registrar's later extension orders could affect an earlier act of bankruptcy." "Whether Mr Sherman should be permitted to review and set aside the Registrar's extension orders." 'Whether Mr Sherman could amend the petition to rely on an act of bankruptcy said to have occurred after presentation of the petition.']

Ratio Decidendi

Ms Lamb did not make an application to the Court within the meaning of s 41(6A) when her solicitors electronically lodged the application at 4:37pm on 15 June 2022. Because r 2.01(1)(a) required the application to be made by filing, and r 2.25(3) deemed an electronically lodged document received after 4:30pm to be filed, if accepted, on the next business day, the application was not made until 16 June 2022. By then the time for compliance with the bankruptcy notice had expired and Ms Lamb had committed an act of bankruptcy on 15 June 2022. The Registrar's later extension orders could not cure or affect that earlier act of bankruptcy and were made without jurisdiction. The petition could...

Court Disposition

Appeal dismissed; respondent's application to review the Registrar's extension orders allowed; extension orders set aside; respondent's application to amend the petition dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay 75% of the respondent's costs." 'Order 2 made on 24 April 2023 be varied so that it reads: "The question of what orders should be made in respect of the interim application filed on 27 March 2023 be referred for the consideration of the Full Court and heard together...