FEDERAL COURT OF AUSTRALIA

Bankstown Grammar School Limited v Park [2000] FCA 1205

BANKRUPTCY – Creditor’s petition – lapsing at expiration of twelve months after filing which occurred seven days after hearing and decision reserved –  order extending currency of petition not made when decision reserved due to oversight of all concerned – but for oversight, order for extension would have been made – availability of “slip rule” found in O 35 r 7 – order made nunc pro tunc.

Bankruptcy Act 1966 (Cth) subss 52(4), (5)

Federal Court Rules O 35 r 7

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 followed

Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261 followed

Komesaroff v Law Institute of Victoria [1997] FCA 965 followed

Re Langridge; Ex parte Bennett, Carroll & Gibbons [1998] FCA 879 followed

Matthews v Collett [2000] FCA 224 followed

BANKSTOWN GRAMMAR SCHOOL LIMITED v KENNETH PARK

N 7933 OF 1999

LINDGREN J

21 AUGUST 2000

SYDNEY

In the matter of Kenneth Park

THE COURT ORDERS THAT:

1.         The order of 10 August 2000 reserving the decision to a date to be advised be varied pursuant to Order 35 rule 7 of the Federal Court Rules by the addition of an order that the period at the expiration of which the petition will lapse be a period of fifteen months commencing on 17 August 1999.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

In the matter of Kenneth Park

REASONS FOR JUDGMENT

1                     This creditor's petition was heard on 10 May and 10 August 2000.  It was fixed for hearing on the former date with an estimated hearing time of one day.  Although the evidence concluded within the day, there was not time to hear submissions.  Accordingly, the case was adjourned to 10 August 2000 for the purpose of oral elaboration on written submissions which had pursuant to directions been made in the meanwhile.  At the conclusion of the hearing on 10 August 2000 I reserved my decision to a date to be advised.

2                     At that time I knew that I was to participate in a Full Court matter the following day, Friday, 11 August, and that I would be absent from Australia during the week commencing Monday, 14 August.  I returned to Australia last Saturday night, 19 August.  Yesterday, Sunday 20 August, I was working on the judgment and came to appreciate that the petition, having been filed on 17 August 1999,  had lapsed last Thursday, 17 August, pursuant to par 52(4)(a) of the Bankruptcy Act 1966 (Cth) (“the Act”), that is, during last week when my decision had been reserved for seven days.

3                     If I had appreciated on 10 August that the petition was to lapse in only seven days’ time, I certainly would have made an order under subs 52(5) of the Actextending the period of the currency of the petition.  I have no doubt also that if counsel appearing on 10 August had appreciated the position, they would have drawn my attention to it and agreed that an order extending time should be made.  Due to the inadvertence of all concerned the petition has lapsed and it is no longer possible for me to exercise the power given by subs 52(5) of the Act since, according to the terms of that subsection, the power can be exercised only before the expiration of the period of twelve months from the presentation of the petition on 17 August 1999.

4                     However, the Court has power under the "slip rule" found in O 35 r 7 of the Federal Court Rules to make an order nunc pro tunc remedying the position.  It is sufficient for me to refer to the obiter dicta found in the Full Court decision in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 (FCA/FC), which related to a winding up application, and the availability of the slip rule subsequently recognised in the context of creditors’ petitions in bankruptcy in Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261 (Burchett J); Komesaroff v Law Institute of Victoria [1997] FCA 965 (Heerey J); Re Langridge; Ex parte Bennett, Carroll & Gibbons [1998] FCA 879 (Kiefel J); and Matthews v Collett [2000] FCA 224 (Spender J).

5                     Helpfully, the legal representatives of the parties have attended Court on short notice and have already considered the issue and the relevant law.  Both parties accept, as do I, that I have power under O 35 r 7 to make the order referred to below.  Moreover, they agree that the case is an appropriate one in which I should exercise my discretion by making that order.

6                     For the above reasons, I order that the order of 10 August 2000 reserving my decision to a day to be advised be varied pursuant to O 35 r 7 of the Federal Court Rules by the addition of an order that the period at the expiration of which the petition will lapse be a period of fifteen months commencing on 17 August 1999.

7                     In relation to costs, I note that there will be no order as to the costs of today.

Associate:

Dated:              31 August 2000