Matthews v Collett [2000] FCA 224

Matthews v Collett [2000] FCA 224

The amendment sought in the creditor's petition alleged a different act of bankruptcy than originally pleaded and was sought after the expiration of the six-month statutory period. As this was a defect of substance, not form, and it would deprive the respondent of a proper opportunity to meet the new allegation, the amendment could not be permitted. Consequently, as the act of bankruptcy originally relied on was not established, the extension of the petition's life would be futile and was also refused.

Parties
First Applicant: Bryce Haddy Matthews; Second Applicant: Bernice Jean Matthews; Respondent: Stanley William Collett
Jurisdiction
Australia
Judgment Date
17 February 2000
Procedural Posture
Bankruptcy Application (creditor's Petition) / Application for Leave to Amend Creditor's Petition and to Retrospectively Extend Time to Avoid Lapse
Outcome
Application dismissed; leave to amend refused; no extension of time granted; costs awarded to respondent as specified.
Legal Topics
Extension of Time Under Bankruptcy Act, Amendment of Creditor's Petition, Slip Rule (order 35 Rule 7 of Federal Court Rules), Acts of Bankruptcy Under Bankruptcy Act S 40(1)(d)
Bankruptcy Extension of Time Under Bankruptcy Act Amendment of Creditor's Petition Slip Rule (order 35 Rule 7 of Federal Court Rules) Acts of Bankruptcy Under Bankruptcy Act S 40(1)(d)

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Parties

Bryce Haddy Matthews

First Applicant

Bernice Jean Matthews

Second Applicant

Stanley William Collett

Respondent

Procedural Posture

Bankruptcy Application (creditor's Petition) / Application for Leave to Amend Creditor's Petition and to Retrospectively Extend Time to Avoid Lapse

Legal Issues

  1. 1 Whether the Court has power to extend the life of a creditor’s petition after it has lapsed under s 52(5) of the Bankruptcy Act 1966, using the slip rule.
  2. 2 Whether amendment of the creditor's petition should be allowed to cure a defective description of the act of bankruptcy and whether such defect is one of substance or form.

Ratio Decidendi

The amendment sought in the creditor's petition alleged a different act of bankruptcy than originally pleaded and was sought after the expiration of the six-month statutory period. As this was a defect of substance, not form, and it would deprive the respondent of a proper opportunity to meet the new allegation, the amendment could not be permitted. Consequently, as the act of bankruptcy originally relied on was not established, the extension of the petition's life would be futile and was also refused.

Court Disposition

Application dismissed; leave to amend refused; no extension of time granted; costs awarded to respondent as specified.

Orders

  • The application for leave to amend the creditor's petition is refused.
  • The application to extend the time after which the creditor's petition will lapse is declined.