Engwirda and Associates Pty Ltd v Rundle

[2004] FMCA 355

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ENGWIRDA & ASSOCIATES PTY LTD v RUNDLE [2004] FMCA 355

BANKRUPTCY – Creditors petition – service – extension of time.

Applicant: FRANK ENGWIRDA & ASSOCIATES PTY LTD

Respondent: REG RUNDLE (AKA REGINALD STEWART RUNDLE)

File No: BZ182 of 2004

Delivered on: 9 June 2004

Delivered at: Brisbane

Hearing date: 10 May 2004

Judgment of: Jarrett FM

REPRESENTATION

For the Applicant: Mr. F. Engwirda (director of the applicant, with leave)

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ182 of 2004

FRANK ENGWIRDA & ASSOCIATES PTY LTD

Applicant

And

REG RUNDLE (aka REGINALD STEWART RUNDLE)

Respondent

REASONS FOR JUDGMENT

1. The applicant applies for the following orders:

   1.   That leave be given to the applicant to extend the time within which the applicant may serve a creditor's petition on the respondent until 31 May 2004.

   2.   Alternatively,

   (a)    that the Court declare that the period of time within which the applicant's creditor's petition may be served upon the respondent commenced on 7 November 2003, on which date the Court dismissed the respondent's application numbered 520/2003 which was filed in the registry pursuant to s 41(5) and s (41)(6A).

   (b)    That pending the hearing of this application, the Court allow further time from the date of this application until the hearing date.

   3.   That, in lieu of personal service, leave be given to the applicant to effect service of the creditor's petition at the address for service provided in the respondent's application numbered 520/2003 and that service at that address to be deemed adequate service.

2. The applicant appeared by a director, Mr Frank Engwirda. Mr Engwirda swore an affidavit upon which the applicant relied in support of the relief that it claims.

3. The application was not served upon the respondent. Notwithstanding that, I determined to deal with the application.

Background

1. The application arises out of a longstanding dispute between the applicant and the respondent. The material before me reveals that:

   a)On 25 January 2002 the applicant obtained a judgment against the respondent in the Magistrates Court of Queensland at Southport.

   b)On 11 June 2003 the applicant applied for an order from this Court that it have leave to serve upon the respondent in Japan a bankruptcy notice founded upon the judgment.

   c)On 9 July 2003 this Court made an order for leave to effect service of the bankruptcy notice in the particular way specified therein upon the respondent in Japan and ordered that service would be deemed to have occurred on 20 August 2003.

   d)Service was carried out in accordance with the terms of the order for service.

   e)The bankruptcy notice allowed the respondent 35 days in which to respond, calculated from the deemed date of service. Hence, it is said that the last day for compliance with the bankruptcy notice was 24 September 2003.

   f)On 23 September 2003 the respondent filed an application in the Federal Magistrates Court pursuant to s.41(5) and 41(6A) of the Bankruptcy Act1966 (“the Act”) seeking orders that…