FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GULLOTTI v COAD | [2007] FMCA 525 |
| BANKRUPTCY – Application to extend time for compliance with Bankruptcy notice – appeal from and application for stay of judgment on which bankruptcy notice based – holding appeal – stay not heard – judgment appealed from ex tempore – nature of and sufficiency of reasons in ex tempore judgment – other relevant factors – application dismissed. |
| Bankruptcy Act 1966 (Cth), s.41(6A) and (6C) |
| Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Justice M Kirby, “Ex Tempore Judgments – Reasons on the Run” (1995) |
| Applicant: | PAUL GULLOTTI |
| Respondent: | RACHEL ANNE COAD |
| File number: | (P)PEG52 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 5 April 2007 |
| Date of last submission: | 5 April 2007 |
| Delivered at: | Perth |
| Delivered on: | 11 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr J G Kitto |
| Solicitors for the Applicant: | Kitto & Kitto |
| Counsel for the Respondent: | Mr G Douglas |
| Solicitors for the Respondent: | Hotchkin Hanly |
ORDERS
The application for interim orders extending time for compliance with the Bankruptcy Notice be dismissed.
The application to set aside the Bankruptcy Notice be listed for hearing at 10.15am on 18 May 2007.
That the Applicant file and serve:
(a)particulars of the grounds of the application to set aside the Bankruptcy Notice; and
(b)affidavits in support of the set aside application
by 4.00pm on 27 April 2007.
That the Respondent file and serve:
(a)particulars of the grounds of opposition to the application to set aside the Bankruptcy Notice; and
(b)affidavits opposing the set aside application
by 4.00pm on 7 May 2007.
That the Applicant and Respondent file and serve a written outline of submissions, and one copy of each authority to be relied upon, by 4.00pm on 11 May 2007.
That the Applicant debtor pay the Respondent’s creditor’s costs of the interim application hearing to be agreed, or if not agreed, taxed according to the Federal Court Rules (0.62).
FEDERAL MAGISTRATES |
(P)PEG52 of 2006
| PAUL GULLOTTI |
Applicant
And
| RACHEL ANNE COAD |
Respondent
REASONS FOR JUDGMENT
(As corrected)
(Revised from the Transcript)
The substantive application in this matter is an application to set aside a bankruptcy notice. There is also an application for interim orders for extension of time in which to comply with the bankruptcy notice. It is that application (“the Interim Application”) which is the subject of this judgment.
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- AGLC
- Gullotti v Coad [2007] FMCA 525
- Case
- [2007] FMCA 525
- Decision Date
CaseChat Overview and Summary
The court examined the circumstances that led to the delay in Gullotti's response and the applicant's explanation for the late filing of the application. It assessed whether the applicant had acted with reasonable diligence and whether there were exceptional circumstances warranting relief from the strict compliance requirements. The court also considered the impact of the delay on Coad and the potential prejudice to the creditor if the notice was set aside. After evaluating the submissions and evidence, the court concluded that the application for interim orders was not justified and dismissed it. However, the application to set aside the notice was allowed to proceed, with specific directions issued for the filing of particulars and affidavits, and a hearing date set for the substantive application.
In summary, the Federal Court dismissed the application for interim orders but allowed the application to set aside the Bankruptcy Notice to proceed. The court set out detailed directions for the filing of particulars and affidavits by both parties and scheduled the substantive hearing. This decision highlights the court's cautious approach to granting extensions in bankruptcy proceedings and its focus on the creditor's interests. The final orders reflect the court's directive for both parties to prepare their respective applications and submissions for the upcoming hearing, while also addressing the costs associated with the interim application.
Orders
Orders of the court
1.
The application for interim orders extending time for compliance with the Bankruptcy Notice be dismissed.
2.
The application to set aside the Bankruptcy Notice be listed for hearing at 10.15am on 18 May 2007.
3.
That the Applicant file and serve:
(a) particulars of the grounds of the application to set aside the Bankruptcy Notice; and
(b) affidavits in support of the set aside application
by 4.00pm on 27 April 2007.
4.
That the Respondent file and serve:
(a) particulars of the grounds of opposition to the application to set aside the Bankruptcy Notice; and
(b) affidavits opposing the set aside application
by 4.00pm on 7 May 2007.
5.
That the Applicant and Respondent file and serve a written outline of submissions, and one copy of each authority to be relied upon, by 4.00pm on 11 May 2007.
6.
That the Applicant debtor pay the Respondent’s creditor’s costs of the interim application hearing to be agreed, or if not agreed, taxed according to the Federal Court Rules (0.62).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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