FEDERAL COURT OF AUSTRALIA

Crimmins v Glenview [1999] FCA 926

BANKRUPTCY  - application to extend time for compliance with a bankruptcy notice pending appeal - discretion - consideration of merits of appeal - statutory right of appeal not important for exercise of discretion - time extended to allow debtor 21 days after judgment refusing application to set aside bankruptcy notice, 21 days having been specified as the original period for compliance with the notice

Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264

Johnstone v Guss [1998] FCA 117

Re Riordan; Ex parte Riordan v Direct Acceptance Corporation Limited (1995) 63 FCR 147

PATRICIA LOUISE CRIMMINS v GLENVIEW HOME UNITS PTY LTD

NG 8398 of 1998

MADGWICK J

4 MAY 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is allowed 21 days from the judgment of Branson J to comply with the Bankruptcy Notice.

3.                  The applicant is to pay the respondent's costs.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is an application to extend the time for compliance with the original bankruptcy notice issued by the respondent judgment creditor. 

2                     The applicant failed in an application before Branson J to set aside the bankruptcy notice on the basis that she had a cross-demand that could not be set up in the proceedings which resulted in the judgment debt:  see Crimmins v Glenview Home Units [1999] FCA 515.  She now wishes to appeal against that decision.  It is conceded by the applicant that whether or not I should extend the time further involves a discretionary judgment by the Court.  In considering whether or not to exercise this discretion I have taken several factors into account.

3                     First, I accept (and understand it to be conceded) that it cannot be said that the applicant's projected appeal is unarguable.  Beyond that I am not prepared to express any conclusions or impressions.  The applicant points to the decision of a Full Court in Re Riordan; Ex parte Riordan v Direct Acceptance Corporation Ltd (1995) 63 FCR 147 discussed in Johnstone v Guss [1998] FCA 117 by Finn J.  In Riordan, following an adverse conclusion to the debtor concerning a claim, broadly speaking within the same general category as that asserted by the applicant before Branson J, there had not been an extension of the time limited in the bankruptcy notice.  The Full Court regarded the appeal as having no practical utility because nothing it could do could retroactively undo the act of bankruptcy which had occurred.  The applicant says that she has a statutory right of appeal against the judgment of Branson J, and this should not be rendered nugatory by the failure of the Court to extend the time for compliance with the bankruptcy notice.  The respondent points to the distinction between extending the time for compliance with a bankruptcy notice and adjourning or dismissing a petition founded upon the act of bankruptcy constituted by the failure to comply with a bankruptcy notice.  This distinction was conveniently discussed recently by Lehane J in Byron v Southern Star Group Pty Limited (1997) 73 FCR 264.

4                     It seems to me that there is no obligation on the Court to fashion extensions of time for compliance with a bankruptcy notice simply to enable a statutory right of appeal to have substance.  While "floodgates" arguments are somewhat out of fashion, it does seem to me that to grant extensions of time more or less automatically would simply encourage appeals by debtors in cases where they have been unsuccessful in applications such as that heard by Branson J.

5                     On the other hand, there was a bona fide dispute about whether the bankruptcy notice should be set aside and it seems to me to be reasonable that the applicant should now have as much time to comply with the bankruptcy notice as she would have had once it was clear to her that the bankruptcy notice was not affected by any such dispute.  Therefore the applicant should be allowed 21 days from the date of Branson J's judgment.

6                     I urged the parties to adopt a common sense approach to this whole matter when the case was before me last Thursday.  That entreaty did not produce concrete results.  I repeat the entreaty.  Within that 21 day period the Court would have jurisdiction in a proper case to further extend the time for compliance with the bankruptcy notice.

7                     The applicant is to pay the respondent's costs.

Associate:

Dated:                        4 May 1999