Garrett v D.C.T.

[2005] FMCA 19

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GARRETT v D.C.T. [2005] FMCA 19

BANKRUPTCY – Review of Registrar’s decision to make a sequestration order – extension of time required for review – prejudice to Trustee for work performed after expiry of time for review – no evidence that debtor solvent – application refused.

Federal Magistrates Act, ss.103, 104

Bankruptcy Act 1966, ss.52, 188

Kyriackou v Shield Mercantile Pty Ltd (No. 2) [2004 FCA 2338]
Harrington v Lowe (1996) 190CLR 311

Applicant: ANDREW MORTON GARRETT

Respondent: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

File No: ADG 90 of 2004

Delivered on: 24 January 2005

Delivered at: Adelaide

Hearing date: 7 December 2004

Judgment of: Lindsay FM

REPRESENTATION

Counsel for the Applicant: Self represented

Solicitors for the Applicant: Self represented

Counsel for the Respondent: Mr Ross-Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application for extension of time to bring an application to review the decision of Registrar Christie of 24 September 2004 is refused.

2. That the Review filed on 2 November 2004 is hereby dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 90 of 2004

ANDREW MORTON GARRETT

Applicant

And

DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

1. This is an application for extension of time in relation to an application for review of a decision of a Registrar of this Court in the exercise of its jurisdiction under the Bankruptcy Act.

2. The order sought to be reviewed is one made by Registrar Christie on 24 September 2004.

3. On that day Registrar Christie made a sequestration order against the estate of the respondent Garrett (the applicant in this application and hereinafter described as the applicant).

4. Registrar Christie on that day was exercising a power delegated to her pursuant to Section 103 of the Federal Magistrates Act and in particular a power set forth in schedule 4 of the Federal Magistrates Court Rules.

5. The review is brought to this Court pursuant to Section 104 of the Federal Magistrates Act. Sub-section 2 of that section provides that the review is to be applied for within the time prescribed by the rules or within any further time allowed in accordance with the rules.

6. Reviews from a Registrar’s decision are referred to twice in the rules. Rule 29.04 dealing with bankruptcy proceedings generally provides that an application for review of a decision of a Registrar must be made within 21 days of the date of the decision and that the decision must be reviewed by the Court. Rule 20.01 in dealing specifically with Registrar’s powers provides that for the purposes of Section 104(2) of the Act the application for review must be made within 21 days. Sub-rule 2 provides that the said time may be extended by the Court or a Registrar on any terms as the Court or Registrar thinks fit.

7. The application was first listed before me on 16 November 2004.  On that day the applicant was directed to file and serve…