James v Hill

[2005] FCA 853

FEDERAL COURT OF AUSTRALIA

James v Hill [2005] FCA 853

BANKRUPTCY – bankruptcy notice – extension of time for compliance – where judgment debtor applied for order setting aside notice in the Federal Magistrates Court – where Federal Magistrate dismissed application but extended time for compliance with notice for two weeks – whether Magistrate had power to do so pursuant to s 41(6A) – where appeal to Federal Court instituted within extended time – where application made for further extension of time pending appeal – whether power to extend time under s 41(6A)

Bankruptcy Act 1966 (Cth) ss 41(6A), 41(7)

Conway v Jackson (2001) 107 FCR 201, cited
James v Abrahams (1981) 34 ALR 657, cited
James v Hill [2005] FMCA 743, considered
Patane v Asteron Life Ltd (2004) FCA 232, applied
Re Udowenko:  Ex parte Mitchell (1996) 69 FCR 299, cited
Shephard v Chiquita Brands South Pacific Ltd (2004) 1 ABC(NS) 610; [2004] FCAFC 76, applied

P.P. McQuade and M.G.R. Gronow, Australian Bankruptcy Law & Practice, 5^th Edition, Law Book Co, 1996

DAVID ANTHONY JAMES v TERRY DONALD HILL

NSD 949 of 2005

EDMONDS J
22 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 949 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DAVID ANTHONY JAMES APPELLANT
AND:	TERRY DONALD HILL RESPONDENT
JUDGE:	EDMONDS J
DATE OF ORDER:	22 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The respondent’s amended motion on notice be dismissed.

2.The time for compliance with bankruptcy notice NN3422/04 issued on 22 December 2004 be extended from 5:00 pm on 22 June 2005 until 14 July 2005 or further order.

3.Costs of the motions be the appellant’s costs of the appeal.

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	NSD 949 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	DAVID ANTHONY JAMES APPELLANT
AND:	TERRY DONALD HILL RESPONDENT

JUDGE:	EDMONDS J
DATE:	22 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED)

1. On Thursday, 16 June 2005 the appellant moved the Court for an order that time for compliance with bankruptcy notice NN 3422 of 2004 and issued on 22 December 2004 [‘the bankruptcy notice’] be extended from 17 June 2005 until determination of these proceedings.

2. In the particular circumstances, namely my agreement to hear the motion on an expedited basis and the inability of the respondent to be represented by counsel on the hearing of the motion, I declined to make the order.  I ordered that time for compliance with the bankruptcy notice be extended from 17 June 2005 until 5pm today, Wednesday, 22 June 2005, and stood the motion over until yesterday, Tuesday, 21 June 2005 for further argument.

3. When the motion came back before me yesterday, counsel for the respondent sought, and I granted, leave for there to…