Bankstown Grammar School Ltd v Park - [2000] FCA 1205

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 FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7933 OF 1999

In the matter of Kenneth Park

BETWEEN:

BANKSTOWN GRAMMAR SCHOOL LIMITED (ACN 003 130 630)
APPLICANT

AND:

KENNETH PARK
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

21 AUGUST 2000

WHERE MADE:

SYDNEY

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 FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7933 OF 1999

In the matter of Kenneth Park

BETWEEN:

BANKSTOWN GRAMMAR SCHOOL LIMITED (ACN 003 130 630)
APPLICANT

AND:

KENNETH PARK
RESPONDENT

JUDGE:

LINDGREN J

DATE:

21 AUGUST 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1205
Decision Date: 21 AUGUST 2000

CaseChat Overview and Summary

Bankstown Grammar School Limited sought to wind up Park, an individual, on the basis that he was unable to pay debts as they fell due. The matter was heard in the Federal Court. The central issue was whether Park was able to pay debts as they fell due. The Court needed to determine if the school's contention that Park was unable to pay debts was correct and if the school had the right to apply for winding up based on this inability. The Court also had to consider the effect of the application on the period within which the winding up petition could be maintained.

The Court found that the school did not have standing to bring the winding up application because it was not a creditor of Park. The Court noted that only a creditor of the individual could bring such an application. Since the school had not provided evidence that it was a creditor, the application was invalid. Additionally, the Court held that the application did not affect the period within which the petition could be maintained. Consequently, the Court varied the earlier order to extend the period for which the petition could be maintained to fifteen months from the date of the original order. This extension ensured that the school could still bring a valid winding up application if it became a creditor of Park within the extended period.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LINDGREN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LINDGREN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7933 OF 1999

BETWEEN:	BANKSTOWN GRAMMAR SCHOOL LIMITED (ACN 003 130 630) APPLICANT
AND:	KENNETH PARK RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	21 AUGUST 2000
WHERE MADE:	SYDNEY

JUDGE:	LINDGREN J
DATE:	21 AUGUST 2000
PLACE:	SYDNEY