FEDERAL COURT OF AUSTRALIA
BANKRUPTCY - creditor’s petition-hearing of petition - during hearing no application to extend period of petition - petition expiring before delivery of judgment - application to extend petition for further twelve months pursuant to slip rule - whether excluded by statute - petition extended for further twelve months
PRACTICE AND PROCEDURE - slip rule - whether slip rule applicable to bankruptcy proceedings
Bankruptcy Act 1966 (Cth) ss 52(4), 52(5)
Corporations Law 1996 s 459
Federal Court Rules O 35 r 7
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Re Agushi; ex parte Farrow Mortgage Services Pty Ltd (in liquidation) & Anr (1994) 126 ALR 704 (not followed)
Re Hibberd (unreported, 5 December 1988, Ryan J)
MORRIS KOMESAROFF v LAW INSTITUTE OF VICTORIA
NO. VG 291 of 1997
|
JUDGE: |
HEEREY J |
|
PLACE: |
MELBOURNE |
|
DATED: |
11 AUGUST 1997 |
|
IN THE FEDERAL COURT OF AUSTRALIA |
) |
|
|
) |
|
|
) |
|
GENERAL DIVISION |
) |
|
MORRIS KOMESAROFF Applicant
|
|
|
AND: |
LAW INSTITUTE OF VICTORIA Respondent
|
|
JUDGE: |
|
|
PLACE: |
|
|
DATED: |
|
|
|
|
THE COURT ORDERS THAT:
1. The order of 8 July 1997 adjourning the petition for judgment be varied pursuant to O 35 r 7 so that it provides that the period at the expiration of which the petition will lapse be a period ending 25 July 1998.
2. The petitioning creditor pay the respondent’s costs of the hearing.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
|
IN THE FEDERAL COURT OF AUSTRALIA |
) |
|
|
) |
|
|
) |
|
GENERAL DIVISION |
) |
|
BETWEEN: |
Applicant
|
|
AND: |
Respondent
|
|
JUDGE: |
|
|
PLACE: |
|
|
DATE: |
|
|
|
|
|
|
|
REASONS FOR JUDGMENT
The petitioner applies for the application of the slip rule, that is O 35 r 7, in these circumstances. The petition was presented on 25 July 1996. After a somewhat complex history and also related litigation in the Supreme Court, the petition came on for hearing on 7 and 8 July. I reserved my decision. There was some mention then of the fact that the twelve month petition period laid down by s 52(4) of the Bankruptcy Act 1966 (Cth) would expire within a few weeks, but no application was made to extend the period. As matters turned out, I was not able to turn to work on the reserved judgment until late last week, that is about 7 or 8 August. It was then obvious that the twelve month period had expired without any order for extension under s 52(5). I directed that the matter be relisted for hearing this morning.
Notwithstanding the apparent specificity of s 52(5), it now appears on the authority of the decision of the Full Court of this Court in Elyard Corporation Pty Limited v DDB Needham Sydney Pty Limited (1995) 133 ALR 206, that the slip rule may be applied nunc pro tunc, and notwithstanding that the amendment which is sought to be made, is one which the statute says must be applied for within a specified period. In Elyard itself that was the period fixed by s 459R of the Corporations Law for the making of a winding up order on the grounds of insolvency. I cannot see any relevant distinction between that case and the present case under s 52(4). Indeed the Full Court disapproved of decisions of Pincus J in Re Hibberd (5 December 1988, unreported) and myself in Re Agushi; ex parte Farrow Mortgage Services Pty Limited (in liquidation) (1994) 126 ALR 704 which had held to the contrary in the case of s 52(4). Thus there is jurisdiction. The order sought to be made the subject of the slip rule is the order I made on 8 July reserving my decision and adjourning the case for judgment.
There remains the question of whether in the exercise of my jurisdiction I should make this order. Mr Komesaroff argued that the nature of the bankruptcy jurisdiction, involving as it does individuals, is different from that of the Corporations Law. I am sympathetic to this argument but I think on balance the position is that the substantive rights of the parties under the petition, which was the subject of the contested hearing and which was adjourned for a period within the normal timeframe of reserved judgments, ought to be determined on its merits. The petition has been, as I said, heavily contested and while Mr Komesaroff’s protests are understandable it is not a substantial increase in the order of inconvenience that he already suffers as a result of being subject of a bankruptcy petition.
So I will order that the order on 8 July 1997 adjourning the petition for judgment be varied pursuant to O 35 r 7 so that it provides that the period at the expiration of which the petition will lapse be a period ending on 25 July 1998.
I will order that the petitioning creditor pay Mr Komesaroff’s costs of the hearing today in any event.
|
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey |
Associate:
Dated: 25 August 1997
|
Counsel for the Applicant: |
The debtor appealed in person |
|
|
|
|
Counsel for the Respondent: |
J A Nolan |
|
|
|
|
Date of Hearing: |
11 August 1997 |
|
|
|
|
Date of Judgment: |
25 August 1997 |
