Application of Melvyn Malcolm Posner

FEDERAL MAGISTRATES COURT OF AUSTRALIA

APPLICATION OF MELVYN MALCOLM POSNER [2007] FMCA 610

BANKRUPTCY – Creditors meetings not held within time prescribed – power of Court to extend time.

Bankruptcy Act 1966 (Cth), ss.33(1)(c), 188, 189A, 190, 194(1)

Re Gowing & Anor, ex parte Deputy Registrar in Bankruptcy (1985) 11 FCR 111

Applicant: MELVYN MALCOLM POSNER

File number: PEG 62 of 2007

Judgment of: FM Lucev

Hearing date: 16 April 2007

Date of last submission: 16 April 2007

Delivered at: Perth

Delivered on: 16 April 2007

REPRESENTATION

Counsel for the Applicant: Ms F F Xue

Solicitors for the Applicant: Christensen Vaughan

ORDERS

1. The time limit in s.194(1) of the Bankruptcy Act 1966 (Cth) in which the controlling trustee is to call a meeting of the debtor's creditors be extended until hearing of this application;

2. The time limit in s.194(1) of the Bankruptcy Act 1966 (Cth), in which the controlling trustee is to call a meeting of the debtor's creditors, be further extended to a date 28 days from today.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG62 of 2007

MELVYN MALCOLM POSNER

Applicant

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application under s.33 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”) to enlarge the time limit set by s.194(1) of the Bankruptcy Act, in which the controlling trustee must call a meeting of the debtor's creditors. The applicant seeks interim relief in terms of an order that the time limit in s.194(1) of the Bankruptcy Act, in which the controlling trustee is to call the meeting of the debtor's creditors, be extended until the hearing of this application. The substantive relief sought is an order in similar terms, but to extend time under s.194(1) of the Bankruptcy Act to call a meeting of the debtor's creditors to be extended for a period of 28 days from today. 

2. The grounds on which the application are made are set out in the affidavit of Christopher James Daws sworn on 10 April 2007. 
   Mr Daws deposes that he is a director employed by Dickson Carrello, Chartered Accountants, and that the applicant is the controlling trustee of the property of Stephen Drake-Brockman. The day to day conduct of the administration is with Mr Daws. He indicates that he has caused to be prepared a controlling trustee's report under s.189A of the Bankruptcy Act, and that that report is currently in draft form and intended to be finalised once a date has been set down for the creditors' meeting.

3. Mr Daws deposes to the fact that on 30 March 2007 he received a call from an inspector with Insolvency and Trustee Service Australia, inquiring whether a creditors' meeting had been held in accordance with s.194 of the Bankruptcy Act. Mr Daws says that he then realised that he had not caused the controlling trustee to call the meeting to be held before 4 April 2004, and as such the controlling trustee could not comply with s.190(1)…