Combe v Ziade (In the matter of Faye Diane Combe)

[2002] FCA 827

FEDERAL COURT OF AUSTRALIA

Combe v Ziade (In the matter of Faye Diane Combe)
[2002] FCA 827

FAYE DIANE COMBE v ANTHONY ZIADE (IN THE MATTER OF FAYE DIANE COMBE)
N 7133 OF 2002

GYLES J
SYDNEY
28 MAY 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7133 OF 2002

BETWEEN:

AND:

FAYE DIANE COMBE
APPLICANT

ANTHONY ZIADE
RESPONDENT

  IN THE MATTER OF FAYE DIANE COMBE

JUDGE:

GYLES J

DATE OF ORDER:

28 MAY 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application and the motion be adjourned to 24 June 2002.

2.The time for compliance with the Bankruptcy Notice be extended to 5.00pm on 24 June 2002.

3.The costs of the respondent thrown away by the adjournment be paid by the applicant.

4.Costs be otherwise reserved.

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 7133 OF 2002

BETWEEN:

AND:

FAYE DIANE COMBE
APPLICANT

ANTHONY ZIADE
RESPONDENT

  IN THE MATTER OF FAYE DIANE COMBE

JUDGE:	GYLES J
DATE:	28 MAY 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I regard this application today as being the hearing of an application for setting aside or extending time for compliance with the bankruptcy notice.  The fact that an interim order was made expiring today only held the status quo and it is up to the applicant to make a case.

2. For reasons that I will not set out in detail at the moment, I am not satisfied that the applicant has made any case at all for setting aside the bankruptcy notice and there is much to be said for the submissions of counsel for the respondent opposing the application for a further extension of time for compliance of the bankruptcy notice.  Any such extension of time has a prejudicial effect upon the position of the judgment creditor and the public.  The decision of Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 supports the position taken by the respondent.

3. However, having looked at the material which has been tendered in the time which has been available to me, I do not think that I can conclude at the moment that the foreshadowed application to the Court of Appeal is doomed to failure.  It is certainly not in proper form at the moment and, whilst appreciating the difficulties of an unrepresented person in these circumstances, it is not the judgment creditor which should bear the burden of those problems.

4. However, balancing all things it seems to me that a period should be allowed to enable the applicant once and for all to get her application to the Court of Appeal in order so that there is some reasonable chance of getting it on.  I do not mean to indicate that when the matter comes back to me I will necessarily grant any further extension of time even if there has been an improvement in the preparation of the matter before the Court of Appeal.  With some hesitation, I think I am bound to afford this applicant an opportunity once and for all get the grounds of attack upon the decisions in the District Court into some sort of coherent form.

5. The application and the motion are adjourned to 10.15 am on Monday, 24 June next.  I extend time for compliance with the bankruptcy notice in issue until 5.00pm on 24 June next.  The costs of the respondent thrown away by the adjournment shall be paid by the applicant.  Costs are otherwise reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            28 June 2002

The Applicant appeared in person
Counsel for the Respondent:	B Skinner
Solicitor for the Respondent:	Anthony Ziade & Associates
Date of Hearing:	28 May 2002
Date of Judgment:	28 May 2002