Boensch v Somerville Legal Pty Ltd
[2019] FCCA 868
•4 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOENSCH v SOMERVILLE LEGAL PTY LTD | [2019] FCCA 868 |
| Catchwords: BANKRUPTCY – Application to set aside the bankruptcy notice – proceedings commenced out of time – no power to extend time for compliance with the bankruptcy notice – no power to set aside the bankruptcy notice – application dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss. 27, 41 |
| Applicant: | FRANZ BOENSCH |
| Respondent: | SOMERVILLE LEGAL PTY LTD |
| File Number: | SYG 499 of 2019 |
| Judgment of: | Judge Street |
| Hearing date: | 4 April 2019 |
| Date of Last Submission: | 4 April 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr J Bingham Bingham Law |
| Solicitors for the Respondent: | Mr C Graham Somerville Legal |
ORDERS
Grant leave to the Applicant to file in Court the Affidavit of John David Bingham dated 17 March 2019 which the Court notes was apparently handed up to the Court on 19 March 2019.
Grant leave to the Respondent to file in Court the Affidavit of Lasche Richardson of 3 April 2019.
The Application is dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of $5,000.00.
DATE OF ORDER: 4 April 2019
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 499 of 2019
| FRANZ BOENSCH |
Applicant
And
| SOMERVILLE LEGAL PTY LTD |
Respondent
REASONS FOR JUDGMENT
These are proceedings within the Court’s jurisdiction under s 27 of the Bankruptcy Act 1966 (Cth) (“the Act”) in which the applicant is seeking to have set aside a bankruptcy notice which on the evidence before the Court was served on 7 February 2019. The 21-day period for compliance under the bankruptcy notice expired on Thursday, 28 February 2019. The proceedings are ones in respect of which the applicant seeks to have the bankruptcy notice set aside. Those proceedings are ones that must be brought before the act of bankruptcy occurs.
There is no power under s 41(6A) of the Act to extend time after the act of bankruptcy has occurred. These proceedings were not commenced within the time for the setting aside of the bankruptcy notice. Accordingly, it is not necessary for the Court to deal with the other arguments advanced by the applicant as to why the bankruptcy notice should have been set aside.
On the evidence before the Court, the Court finds that an act of bankruptcy occurred on 28 February 2019 and these proceedings were not commenced until 4 March 2019. Accordingly, the Court has no power to extend time for compliance with the bankruptcy notice and no power to set the same aside.
I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 7 May 2019
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