Application By Benjamin Peter Piggott

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICATION BY BENJAMIN PETER PIGGOTT [2009] FMCA 1061

BANKRUPTCY – Extension of time for holding of creditors meeting – power to extend time – exercise of discretion – factors.

Bankruptcy Act 1966, ss.33, 33(1)(c), 188, 194, 194(1), 222

Application of Malcolm Melvyn Posner [2007] FMCA 610
Council of the New South Wales Bar Association v Eddy (2006) 151 FCR 34; [2006] FCA 254
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Pretorius v Daltons Carpet Tiles Pty Ltd (1984) 1 FCR 346
Re Gowing; Ex parte Deputy Registrar in Bankruptcy (1985) 11 FCR 111

Applicant: BENJAMIN PETER PIGGOTT AS CONTROLLING TRUSTEE OF THE ESTATE OF JEROME PATRICK ANGELO

File Number: PEG 177 of 2009

Judgment of: Lucev FM

Hearing date: 26 October 2009

Date of Last Submission: 26 October 2009

Delivered at: Perth

Delivered on: 26 October 2009

REPRESENTATION

Counsel for the Applicant: Mr. C Stokes

Solicitors for the Applicant: Chris Stokes & Associates

ORDERS

1. This application be made returnable instanter.

2. The time for holding of the Meeting of Creditors pursuant to Section 194 of the Bankruptcy Act 1966 be extended from 8 September 2009 to 9 September 2009.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 177 of 2009

BENJAMIN PETER PIGGOTT AS CONTROLLING TRUSTEE OF THE ESTATE OF JEROME PATRICK ANGELO

Applicant

REASONS FOR JUDGMENT

(Ex tempore reasons edited from the transcript)

1. This is an application under s.33 of the Bankruptcy Act 1966 (Cth)[1] to extend the time set by s.194(1) of the Bankruptcy Act, in which the controlling trustee must call a meeting of creditors. The application seeks to have been made returnable instanter and the Court is prepared to deal with it on that basis.

   [1] “Bankruptcy Act”.

2. The controlling trustee has filed two affidavits, one sworn on 25 September 2009, and the other sworn on 23 October 2009 which is the subject of an undertaking by counsel for the applicant to be filed. The latter deals with service on the creditors and the former deals with the substance of the application to which the Court now turns.

3. The affidavit sworn on 25 September 2009 deposes to the following:

   a)that there was a requirement to hold a meeting of creditors by 8 September 2009;

   b)that the controlling trustee miscalculated the date for holding the meeting of creditors as being 9 September 2009 and issued a notice of meeting accordingly;

   c)that the controlling trustees report to creditors dated 27 August 2009 was sent with the notice of meeting on 27 August 2009;

   d)the error as to the date for the meeting of creditors was brought to the attention of the controlling trustee by an ITSA officer during a routine audit on 4 September 2009;

   e)the controlling trustee chaired the meeting of creditors held on 9 September 2009 at which a resolution was passed that, despite the meeting been held out of time, it was still held at a date, time and place convenient to…