Gilbert, Trading in Partnership as Gilbert + Tobin v Stolyar

Gilbert + Tobin, acting as the applicant creditor, filed a creditor's petition against the respondents based on their alleged failure to comply with a bankruptcy notice. This notice demanded payment of a judgment debt of $484,314.04, representing legal costs incurred by Gilbert + Tobin in prior Supreme Court proceedings. The creditor's petition had been adjourned multiple times, primarily to await the outcome of an appeal in the Supreme Court proceedings, with the expectation that a successful appeal by the respondents would provide funds to satisfy the judgment debt. The court hearing this matter was the Federal Circuit Court of Australia.

The central legal issue before the Court was whether it had the power to amend or set aside an order made by a Registrar, specifically an adjournment order, to include an order under s.52(5) of the *Bankruptcy Act 1966* (Cth). This question arose because the applicant creditor's solicitor, through oversight, failed to request an order under s.52(5) when seeking the final adjournment of the creditor's petition. The respondents did not appear at this hearing.

The Court reasoned that while the *Federal Circuit Court Rules 2001* (Cth) do not contain a specific "slip rule," the *Federal Court Rules 2011* (Cth), particularly rule 39.05(h), apply to judgments and orders made by the Federal Circuit Court by virtue of s.43(2)(b) of the *Federal Circuit Court of Australia Act 1999* (Cth) and rule 1.05(2) of the *Federal Circuit Court Rules 2001*. The Court affirmed that the slip rule, as incorporated from the Federal Court Rules, could be applied to amend orders where a petitioning creditor, through inadvertence, failed to seek an order under s.52(5) of the *Bankruptcy Act 1966* (Cth) at the time the order was made. The Court found that the failure to apply for the s.52(5) order was indeed an oversight.