Re: AGATHOCLES AGATHOCLEOUS CONSTANTINE and OLGA CONSTANTINE Ex Parte: SHELLCOVE DEVELOPMENTS PTY. LIMITED No. B3968 of 1992 FED No. 202 Number of pages - 22 Bankruptcy
COURT
IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES Beazley J(1)
CATCHWORDS
Bankruptcy - Bankruptcy Notice - Court discretion to extend time for compliance with the notice and to set aside notice where an appeal is pending - whether bona fide appeal - whether reasonable prospects of success.
Super Pty. Limited v. S.J.P. Formwork (Aust) Pty. Limited (Court of Appeal 18 December 1992)
HEARING
SYDNEY, 9 March 1993
#DATE 17:3:1993
Counsel for the Applicant: J.J. Graves
Solicitors for the Applicant: Colin Biggers and Paisley
Counsel for the Respondent: I. Wales
Solicitors for the Respondent: Doumanis and Co.
ORDER
The Court orders that:
1. That the Orders of the Registrar made on 10 February 1993 be discharged.
2. That the respondent/debtor forthwith take all steps reasonably available to them to have the hearing of their appeal against the applicant/creditor heard expeditiously, including that they forthwith make application to the Court of Appeal for an expedited hearing of the appeal.
3. That the application to set aside the Bankruptcy Notice be extended to 7 days after the determination of the appeal by the Court of Appeal.
4. That the time for compliance with the Bankruptcy Notice be extended until 7 days after the determination of the appeal by the Court of Appeal.
5. Liberty to each party to apply on 2 days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
BEAZLEY J This is an application by Shellcove Developments Pty. Limited ("Shellcove") to set aside orders of the Registrar made on 10 February 1993 that time for compliance with Bankruptcy Notice No. B3968 of 1992 dated 2 October 1992 ("the Bankruptcy Notice") be extended until further order and that the debtors' application to set-aside the Bankruptcy Notice be adjourned generally.
The Bankruptcy Notice was served on Agathocles and Olga Constantine ("the Constantines") on 22 December 1992. On the following day, they made an ex parte application to the Registrar for extension of time for compliance with the Bankruptcy Notice. An order extending the time for compliance to 2 February 1993 was made. Also on 23 December 1992, the Constantines filed an application seeking orders that the Bankruptcy Notice be set aside and that time for compliance with the Notice be extended. When the matter came before the Registrar on 2 February 1993, the parties consented to…
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
AGLC
Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202
Case
[1993] FCA 202
Decision Date
CaseChat Overview and Summary
Dolan, a creditor, brought proceedings against Australian and Overseas Telecommunications Corporation, the debtor, seeking an extension of time to comply with a Bankruptcy Notice and to set aside the notice. The debtor had appealed against the Bankruptcy Notice to the Court of Appeal, and the creditor sought to have the time for compliance and the application to set aside extended until the appeal was determined. The Federal Court considered whether the appeal was bona fide and whether the debtor had reasonable prospects of success.
The court had to determine whether the debtor's appeal was genuine and whether there was a reasonable chance of success. The court considered the merits of the appeal and the arguments presented by both parties. The court also considered the impact of the appeal on the creditor's ability to enforce the Bankruptcy Notice.
The court found that the debtor's appeal was bona fide and that there were reasonable prospects of success. The court noted that the debtor had raised substantial questions of law and fact that warranted an appeal. The court also found that the creditor had not demonstrated any prejudice that would result from extending the time for compliance and setting aside the Bankruptcy Notice. The court therefore extended the time for compliance and the application to set aside until seven days after the determination of the appeal by the Court of Appeal.
The court ordered that the orders made by the Registrar on 10 February 1993 be discharged. The court also ordered that the debtor take all steps reasonably available to have the hearing of their appeal heard expeditiously, including making an application to the Court of Appeal for an expedited hearing. The court further ordered that the application to set aside the Bankruptcy Notice be extended to seven days after the determination of the appeal by the Court of Appeal, and that the time for compliance with the Bankruptcy Notice be extended until the same time. The court granted liberty to each party to apply on two days notice.
Orders
Orders of the court
The Court orders that:
1. That the Orders of the Registrar made on 10 February 1993 be discharged.
2. That the respondent/debtor forthwith take all steps reasonably available to them to have the hearing of their appeal against the applicant/creditor heard expeditiously, including that they forthwith make application to the Court of Appeal for an expedited hearing of the appeal.
3. That the application to set aside the Bankruptcy Notice be extended to 7 days after the determination of the appeal by the Court of Appeal.
4. That the time for compliance with the Bankruptcy Notice be extended until 7 days after the determination of the appeal by the Court of Appeal.
5. Liberty to each party to apply on 2 days notice.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.