Hovan v Goycolea-Silva

[2003] FCA 234

FEDERAL COURT OF AUSTRALIA

Hovan v Goycolea-Silva [2003] FCA 234

BANKRUPTCY – bankruptcy notice – application for extension of time for compliance – proposed application to set aside bankruptcy notice – appeal from order of Federal Magistrates Court dismissing earlier application to set aside bankruptcy notice – application for extension of time dismissed

Bankruptcy Act 1966 (Cth) s 41(6A)

Hovan v Goycolea-Silva [2003] FMCA 65 referred to

GEORGE L HOVAN v MARIA SOLEDAD GOYCOLEA-SILVA

N182 OF 2003

EMMETT J

6 MARCH 2003

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N182 OF 2003

BETWEEN:	GEORGE L HOVAN APPLICANT
AND:	MARIA SOLEDAD GOYCOLEA-SILVA RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.leave be granted to the Applicant to file an application in the form initialled and dated  by Emmett J to be made returnable before Emmett J on 7 March 2003 at 2:15 pm;

2.the time for service of the application be abridged until 1.30 pm on 7 March 2003;

3.the application for an extension of time be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N182 OF 2003

BETWEEN:	GEORGE L HOVAN APPLICANT
AND:	MARIA SOLEDAD GOYCOLEA-SILVA RESPONDENT

JUDGE:	EMMETT J
DATE:	6 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for extension of time for compliance with a bankruptcy notice under s 41(6A) of the Bankruptcy Act 1966 (Cth) (“the Act”).  The application is made on two bases.  First, the application is based on a proposed application to this Court to set aside the bankruptcy notice.  The second basis is that the application is made in aid of an appeal to this Court from an order made by the Federal Magistrates Court dismissing an earlier application to set aside the bankruptcy notice. 

2. Section 41(6A) of the Act provides as follows:

   “Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:

   (a)proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

   (b)an application has been made to the Court to set aside the bankruptcy notice;

   the Court may … extend the time for compliance with the bankruptcy notice.”

3. The history of the matter does not do any credit to the applicant (“the Debtor”), who, it appears, was previously a solicitor of the Supreme Court of New South Wales.  The Debtor was retained to act for Maria Soledad Goycolea-Silva (“the Creditor”) when she was detained in Mulawa Correctional Centre for being knowingly concerned in the importation of a commercial quantity of prohibited drugs.

4. The retainer was discontinued after the Debtor had done work for the Creditor.  Nevertheless, the Creditor paid fees in accordance with a fee note apparently rendered to her by the Debtor.  The Creditor subsequently served on the…