Kahllouf, K. v Plotkins

[1992] FCA 645

JUDGMENT No. ...k.% L.../ .ZL&

IN THE FEDERAL COURT OF AUSTRALIlC ) )

VICTORIA DISTR	ICT ReGISTRY	)	NO VN 2310 of 1992
1

DIVISION )

BETWEEN:  KHALIL KAHLLOUF

EX PARTE:

corm:  Ryan J

m: Melbourne

m:  2 September 1992 FEDERAL

EX TEMPORE REASONS FOR JUDGMENT

Rvan _;l: In this matter it is clear that at the time of the

application to the Deputy Registrar for an extension of time for complying with the bankruptcy notice, it appeared on the face of documents then in existence that the debtor had taken proceedings to set aside the judgment or order in respect of which the bankruptcy notice had been issued.

However, as now seems to be accepted on both sides, those proceedings were misconceived in the sense that the debtor was seeking not to set aside the foundational order of the Magistrates Court. Indeed, since he had appeared at the time of the making of that order, there was no jurisdiction in the Magistrates Court to entertain such an application.	aside was an order made by the Magistrates Court differently	It appears that the order which Mr Khallouf was concerned to set
constituted setting aside an order under the Judament Debt
pecoverv Act 1984 (Vic. ) for payment of the judgment debt by
instalments. It is unnecessary for me to consider whether or not it was open to Mr Khallouf to seek to set aside that order
because it is clear that it was not the judgment or order in respect of which the bankruptcy notice was issued in terms of s.41(6B) of the Act. I note in passing that evidence has been 'called to indicate that Mr Khallouf was, in fact, present when the order was made setting aside the order for payment of the foundational debt by instalments.
In these circumstances, I am satisfied that it is appropriate to review the order made by the Deputy Registrar. The power to entertain such a review is conferred by subs.(5) of s.14 of the Act which provides:

"An order or direction made or given, or an act done, by a Registrar or a Deputy Registrar under thls Act is subject to review on summary application to the Court."

It has been held by G m o w J in Re Greenhill: ex Darte Pook	(1988) 83 ALR 295 that in considering such an application for
it existed at the time of the order under review and is not limited to considering the material as it existed before the Registrar at the time of making that order.
It will be clear from what I have said so far that there was, in fact, no basis for the granting of an extension of time on the ground afforded by s.41(6B). Accordingly, the application for review should be granted and the extension of time allowed by
Deputy Registrar Agnew should be set aside.
However, since that extension of time has been in force now for some period, and since the debtor may have ordered his affairs in reliance on that extension having been granted, I consider it inappropriate peremptorily to set aside the extension of time without affording some limited opportunity to comply with the notice, either by paying or securing the amount of the judgment debt or by seeking to satisfy the Court of the existence of a counter-claim, set off or cross-demand of the kind contemplated by s.40(l)(g) of the Act.
I therefore propose, in lieu of the order made by Deputy Registrar Agnew to order that the time for compliance with the bankruptcy notice served on 31 July 1992 be extended to 9 September 1992. I shall further order that the judgment creditor's costs of this application be the petitioning creditor's costs in the cause in the event of a petition being issued for alleged non-compliance with the bankruptcy notice. I certify that this and the preceding

review the Court may receive evidence on the state of affairs as

two (2) pages are a true copy of the
Reasons for Judgment of his Honour

Mr Justice Ryan

The debtor appeared in person,

assisted by Mr A Khallouf

Solicitor for the respondent: Mr J Kelly of Messrs Read Kelly