Djunaedi v Mohor
[2025] FedCFamC2G 216
•18 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Djunaedi v Mohor [2025] FedCFamC2G 216
File number(s): ADG 75 of 2024 Judgment of: JUDGE LUCEV Date of judgment: 18 February 2025 Catchwords: BANKRUPTCY – Extension of the period at the expiration of which the creditors petition will lapse Legislation: Bankruptcy Act 1966 (Cth) s 52 Cases cited: Djunaedi v Collins [2025] FedCFamC2G 135
Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149; (2006) 154 FCR 554; (2006) 235 ALR 247; (2006) 4 ABC(NS) 270
Heywood v Sharpe [2014] FCCA 2999; (2014) 291 FLR 217
McNally v Fazio (No 2) [2015] FCCA 1935
Division: Division 2 General Federal Law Number of paragraphs: 11 Date of last submission/s: 7 February 2025 Date of hearing: 7 February 2025 Place: Perth Counsel for the Applicants: Mr E Belperio and Dr R Catterwell Solicitor for the Applicants: Websters Lawyers Counsel for the Respondents: Mr G Finlayson Solicitor for the Respondents: Diaspora Legal ORDERS
ADG 75 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JULIE DJUNAEDI
First Applicant
DEDDY DJUNAEDI
Second Applicant
ANTONIO DEPASQUALE (and others named in the Schedule)
Third Applicant
AND: VERONIKA MOHOR
First Respondent
ROBERT WAYNE COLLINS
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
7 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth) the period at the expiration of which the Creditors Petition filed on 27 February 2024 will lapse be extended to 26 February 2026.
2.The matter be adjourned to a mention by the General Federal Law Case Management Judge in the Adelaide Registry on a date to be fixed.
3.Costs reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
On 7 February 2025 the Court made orders (“Extension Orders”) as follows in this matter:
1.Pursuant to s 52(5) of the Bankruptcy Act 1966 (Cth) the period at the expiration of which the Creditors Petition filed on 27 February 2024 will lapse be extended to 26 February 2026.
2.The matter be adjourned to a mention by the General Federal Law Case Management Judge in the Adelaide Registry on a date to be fixed.
3. Costs reserved.
On 14 February 2025 the respondents’ solicitor requested a copy of the Court’s reasons in respect of order 1 of the Extension Orders. The Reasons for Judgment are set out hereunder.
This matter (ADG 75 of 2024) was one of two matters listed to be heard before the Court together on 16 August 2024 in Adelaide. The other matter was ADG 15 of 2024 in which the respondent, Robert Wayne Collins (“Mr Collins”), who is the second respondent in these proceedings, was seeking to set aside a Registrar’s order for substituted service of a bankruptcy notice allegedly served upon him.
At the hearing on 16 August 2024 the Court determined to hear only ADG 15 of 2024, and to adjourn ADG 75 of 2024.
Judgment in ADG 15 of 2024 was delivered on 7 February 2025: see Djunaedi v Collins [2025] FedCFamC2G 135 (“Djunaedi – Set Aside”), setting aside the Registrar’s order for substituted service. Immediately thereafter there was a directions hearing in respect of ADG 75 of 2024 at which the Extension Orders were made.
Section 52(5) of the Bankruptcy Act 1966 (Cth) provides as follows:
The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order.
Section 52(5) of the Bankruptcy Act empowers the Court to exercise a discretion to extend the life of a Creditors Petition by up to a further 12 months from the date of its initial presentation where the Court considers it “just and equitable to do so”.
The making of an order to extend the period of time at which a Creditors Petition lapses is not unusual, and is often made in circumstances where inadvertence, delay or listing schedules in a court might result in the Creditors Petition expiring, and such orders have been made (albeit with some reluctance on the part of the courts) even in circumstances where a Creditors Petition has already expired: see the discussion generally in Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149; (2006) 154 FCR 554; (2006) 235 ALR 247; (2006) 4 ABC(NS) 270 at [17]-[29] per Spender ACJ, Dowsett and Collier JJ; see also Heywood v Sharpe [2014] FCCA 2999; (2014) 291 FLR 217 at [55]-[62] per Judge Manousaridis. In McNally v Fazio (No 2) [2015] FCCA 1935 at [23]-[27] and [32] per Judge Lucev the period was extended where there was insufficient time to properly deal with the Creditors Petition in the event that the appointment of a plenary administrator to an estate was revoked by an administrative tribunal and there was no opportunity in any event to list the Creditors Petition before the date of the revocation hearing in that tribunal and the date on which the Creditors Petition was due to lapse.
The Extension Order was made because the Court considered it just and equitable to extend the period of time at the expiration of which the Creditors Petition would lapse in circumstances where:
(a)it was almost six months after the filing of the Creditors Petition on 27 February 2024 before the matter was listed for hearing before the presently presiding Judge, and then adjourned consequent upon the hearing and determination of ADG 15 of 2024;
(b)it was almost a further six months before this matter was listed for a further directions hearing immediately after the delivery of judgment in Djunaedi – Set Aside; and
(c)the Court will not be able to deal with the application for a Creditors Petition before the time at which the Creditors Petition would ordinarily lapse (that is, 12 months) because the currently presiding Judge is no longer circuiting in the Adelaide Registry, and no other Judge is available to hear the matter before the Creditors Petition lapses: see Transcript, 7 February 2025, pp 2-4.
It is therefore just and equitable that the period at the expiration of which the Creditors Petition lapses be extended so that the interests of justice (which may or may not require the issuance of the Creditors Petition) not be thwarted.
It was for the above reasons that the Court made the Extension Order.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 18 February 2025
SCHEDULE OF PARTIES
ADG 75 of 2024 Applicants
Fourth Applicant:
SALLY DEPASQUALE
Fifth Applicant:
COLIN PRESTON
Sixth Applicant:
PHILIP CHARLTON
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