Duyker v Official Receiver in Bankruptcy Qld

[2004] FCA 573

FEDERAL COURT OF AUSTRALIA

Duyker v Official Receiver in Bankruptcy Qld [2004] FCA 573

JOHN THEODORE DUYKER v OFFICIAL RECEIVER IN BANKRUPTCY QUEENSLAND AND BRUCE SYDNEY WALTERS

Q 172 OF 2003

DOWSETT J
8 APRIL 2004
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 172 OF 2003

BETWEEN:

JOHN THEODORE DUYKER
APPLICANT

AND:

OFFICIAL RECEIVER IN BANKRUPTCY QUEENSLAND
FIRST RESPONDENT

BRUCE SYDNEY WALTERS
SECOND RESPONDENT

JUDGE:

DOWSETT J

DATE OF ORDER:

8 APRIL 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.        The application for an extension of time is refused.

2.        The applicant pay the costs of both respondents of and incidental to the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 172 OF 2003

BETWEEN:

JOHN THEODORE DUYKER
APPLICANT

AND:

OFFICIAL RECEIVER IN BANKRUPTCY QUEENSLAND
FIRST RESPONDENT

BRUCE SYDNEY WALTERS
SECOND RESPONDENT

JUDGE:	DOWSETT J
DATE:	8 APRIL 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal from a decision of a Federal Magistrate refusing to annul a bankruptcy.

2. The delay seems to me to have been relatively short and possibly, at least in part, explicable.  I am inclined to the view that, if the present applicant were able to demonstrate that he had an arguable ground of appeal, I would be minded to grant his application for an extension of time.  However no recognisable ground appears from his application.

3. I have given the applicant numerous opportunities to explain to me what he says is wrong with the Magistrate’s decision.  The only possible ground appears to be the assertion that a gentleman called Mr Ring provided evidence at the hearing which suggested that, at the time of the sequestration order, the applicant was solvent.

4. The Federal Magistrate, however, appears to have proceeded upon the basis that, in any event, his solvency as at the time of the application for annulment was not demonstrated.  See [16] of the reasons.  It seems, in any event, that he made remarks in the course of the hearing which suggested that he was not persuaded by Mr Ring’s evidence.  It is not necessary to go into that matter.

5. Solvency as at the time of the application for annulment is a relevant consideration.  Thus, even if the applicant is correct in asserting that there was evidence from Mr Ring as to solvency at the time of the sequestration order, and even assuming that it ought to have been accepted, the Magistrate’s decision was still a proper exercise of the discretion, or at least there is no reason for suspecting otherwise. 

6. In the absence of any arguable ground of appeal, no point would be served by granting the extension of time.  The application for an extension of time is therefore refused. 

7. I order that the applicant pay the costs of both respondents of and incidental to the application for an extension of time.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            7 May 2004

Counsel for the Applicant:	The Applicant appeared in person.
Solicitor for the First Respondent:	Tucker & Cowen
Counsel for the Second Respondent:	The Second Respondent appeared in person.
Date of Hearing:	8 April 2004
Date of Judgment:	8 April 2004