Boensch v Somerville Legal Pty Ltd

[2019] FCCA 868

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

1. 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.

2. Grant leave to the Respondent to file in Court the Affidavit of Lasche Richardson of 3 April 2019.

3. The Application is dismissed.

4. 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

1. 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.

2. 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.

3. 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