Kuek v Wade
[2025] FedCFamC2G 1512
•25 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kuek v Wade [2025] FedCFamC2G 1512
File number(s): MLG 2373 of 2023 Judgment of: JUDGE FARY Date of judgment: 25 September 2025 Catchwords: BANKRUPTCY – Application to review a registrar’s decision not to set aside a bankruptcy notice – review application made out of time – where the applicant is 417 days out of time – application dismissed and bankruptcy notice not set aside. Legislation: Bankruptcy Act 1966 (Cth) ss 30(1), 40, 41, 44
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 254, 256
Migration Act 1958 (Cth) ss 476, 477(2)
Federal Circuit and Family Court of Australia (Bankruptcy) Rules 2021 (Cth) rr 1.04, 2.01, 2.02, Pt 1 of Sch 1
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) r 10.29
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 6.05, 21.01, 21.04
Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 60.02, 68.02
Magistrates' Court General Civil Procedure Rules 2020 (Vic) Or 66
Cases cited: Amos v Citibank [1996] QCA 129
APX Projects Pty Ltd v The Owners — Strata Plan No 6402514 [2015] NSWSC 1250
Bechara v Bates (2021) 286 FCR 166
Bryant v Commonwealth Bank of Australia (1994) 217 ALR 251
Cheesman v Waters (1997) 148 ALR 21
Commonwealth Bank of Australia v Saggese (2018) 55 VR 241
Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458
Deputy Commissioner of Taxation (NSW) v Donnelly (1989) 25 FCR 432
Di Cioccio v Official Trustee in Bankruptcy [2015] FCAFC 30; BC201501292
Di Iorio v Wagener [2015] FCA 524; BC201504416
Foakes v Beer (1884) 9 App Cas 605
Gallo v Dawson (1990) 93 ALR 479
Ginnane v Diners Club Ltd (1993) 42 FCR 90; 120 ALR 375
Grundy v Wattyl Australia Pty Ltd [2002] FCA 1480
Guss v Deputy Commissioner of Taxation (2015) 238 FCR 509
Harris v Caladine (1991) 172 CLR 84
Hawkins v Kingsway Group Ltd [2009] FCA 1073; BC200908919
Horne v Retirement Guide Management Pty Ltd (2017) 54 VR 325
Hudson Jr v Donald [1997] FCA 852
Hudson v Donald [1998] FCA 227
Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Scott (1986) 12 FCR 187
Kuek v Wade & Anor
Kuek v Wade [2017] VSCA 329
McMahon’s (Transport) Pty Ltd v Ebbage [1995] 1 Qd R 185
Perovich v Tesla Nominees Pty Ltd [2006] FMCA 1342
Pinnel’s Case (1602) 5 Co Rep 117
Pioneer Credit Acquisition Services Pty Ltd v Hayes [2017] FCA 124
Ralkon v Aboriginal Development Commission (1982) 43 ALR 535
Rambaldi v Mullins (No 2) [2016] FCA 977
Re Brindle: Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506; 108 ALR 470
Re Gray; Gray v Ball BC9707278; [1997] FCA 1512
Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374; 89 ALR 631
Re Lentini: Ex parte Lentini v CSR Ltd (1991) 29 FCR 363
Re Politt; Ex parte Minor (1893) 1 Q.B. 455
Re Sterling: Ex parte Esanda Ltd (1980) 30 ALR 77; 44 FLR 125
Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494
SZJRV v Minister for Immigration and Citizenship [2008] FCA 298
Totev v Sfar (2008) 167 FCR 193
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 276 CLR 579
Wright v Corani [2006] SASC 115; BC200602667
Yeo (Trustee) in the matter of Taib (Bankrupt) v Melnik [2025] FedCFamC2G 1486
Division: Division 2 General Federal Law Number of paragraphs: 144 Date of last submission/s: 12 September 2025 Date of hearing: 12 September 2025 Place: Melbourne Counsel for the Applicant: Mr Levine Solicitor for the Applicant: Mr Djung, Rigby & Bear Counsel for the Respondent: Mr Lees Solicitor for the Respondent: Mr Brett, DTCH Lawyers ORDERS
MLG 2373 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF LAMPRINI LEMBROU WADE
BETWEEN: GABRIEL KUEK
Applicant
AND: LAMPRINI LEMBROU WADE
Respondent
ORDER MADE BY:
JUDGE FARY
DATE OF ORDER:
25 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The application filed by the respondent on 12 August 2025 be dismissed.
2.
The applicant file and serve any written submissions in relation to costs of no more
than 5 pages on or before 4:00pm 2 October 2025.
3.
The respondent file and serve any written submission in relation to costs of no more
than 5 pages on or before 4:00pm 9 October 2025.
4.
The applicant file and serve any submissions in reply of no more than 2 pages on or
before 4:00pm 16 October 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).
REASONS FOR JUDGMENT
JUDGE FARY:
INTRODUCTION
By interlocutory application (Extension and Review Application) filed 12 August 2025, Mr Kuek (Applicant) seeks an extension of time pursuant to r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2)(Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules) for review of a Judicial Registrar’s (Registrar) decision (Registrar’s Decision) to set aside a bankruptcy notice dated 7 December 2023 (Bankruptcy Notice), served by the Applicant on Ms Wade (Respondent). The Registrar’s Decision and Orders were made on the Respondent’s application (Application) filed on 29 December 2023.
The Extension and Review Application was filed 417 days out of time.
If the extension of time sought in the Extension and Review Application is successful, then the hearing would proceed by way of a hearing de novo of the Application.
The hearing of the Extension and Review Application took place at the Melbourne Registry on 12 September 2025 (Hearing). Both the Applicant and Respondent were represented by counsel. At the conclusion of the Hearing, judgment was reserved.[1] These are the reasons for judgment in relation to the Hearing.
[1] Orders made by Judge Fary on 12 September 2025, Order 1.
MATERIALS RELIED UPON
The Applicant relied upon the following documents:
(a)affidavit of Benjamin Djung filed on 17 January 2024;[2]
(b)affidavit of the Applicant sworn on 20 March 2024 (Kuek March Affidavit);[3]
(c)affidavit of the Applicant sworn on 12 August 2025 (Kuek August Affidavit); [4]
(d)affidavit of the Applicant affirmed on 10 September 2025 (Kuek September Affidavit);[5]
(e)affidavit of Benjamin Djung filed on 11 September 2025;[6]
(f)outline of submissions filed 20 March 2024; and
(g)outline of submissions filed on 11 September 2025.
[2] Exhibit A1.
[3] Exhibit A2.
[4] Exhibit A3.
[5] Exhibit A4.
[6] Exhibit A5.
The Respondent relied upon the following documents:
(a)affidavit of the Respondent sworn 1 February 2023 (Wade February Affidavit); [7]
(b)affidavit of the Respondent sworn 15 March 2023 (Wade March Affidavit); [8]
(c)affidavit of the Respondent sworn 29 December 2023 (Wade December Affidavit); [9]
(d)affidavit of Margarite Wade sworn 8 April 2024; [10] and
(e)affidavit of the Respondent affirmed 10 September 2025 (Wade September Affidavit).[11]
[7] Exhibit R1.
[8] Exhibit R2.
[9] Exhibit R3.
[10] Exhibit R4.
[11] Exhibit R5.
BACKGROUND
On 15 April 2009, the Respondent in her capacity as litigation guardian for her son, engaged the Applicant to commence proceedings in the Federal Court against the State of Victoria (State). These proceedings were initially three separate proceedings but were consolidated.[12]
[12] [2] Kuek v Wade [2017] VSCA 329.
In April 2009, Federal Court proceedings were commenced and alleged that the State had discriminated against the Respondent’s son in the provision of education services on the basis of his intellectual disability.[13]
[13] [2] Kuek v Wade [2017] VSCA 329.
On 3 May 2012, the State offered to settle the Federal Court proceeding for $50,000 plus costs. The Applicant communicated the offer to the Respondent. At that time, the Applicant did not know the quantum of the solicitor-client costs or the party-party costs to be recovered from the State and did not provide any estimate of these costs. The Applicant had previously informed the Respondent that his solicitor-client costs would exceed the party-party costs by more than $15,000. The Applicant informed the Respondent that he was willing to accept that amount in addition to the party-party costs. The Applicant offered to pay the Respondent $10,000 in addition to party-party costs and he accepted (Agreement).[14]
[14] [3] Kuek v Wade [2017] VSCA 329.
On 4 May 2012, the Federal Court proceedings were settled.[15]
[15] [3] Kuek v Wade [2017] VSCA 329.
On 14 January 2013, the Applicant sent an invoice to the Respondent for $10,000. The Respondent did not pay the invoice.[16]
[16] [4] Kuek v Wade [2017] VSCA 329.
On 14 December 2015, the Applicant commenced proceedings in the Magistrates' Court of Victoria claimed the amount of $10,000 and interest of $2,910.56 (Magistrates’ Court Proceedings). The Respondent defended the proceedings. The Respondent was self-represented in these proceedings and alleged in her defence that she entered the Agreement under pressure from the Applicant who had threatened to cease acting for her at a critical stage of settlement negotiations.[17]
[17] [5] Kuek v Wade [2017] VSCA 329.
On 26 June 2016, proceedings were heard by Magistrate Michael Smith. The hearing was conducted by both parties making opening submissions, adducing evidence in turn and then making closing submissions. The Magistrate conducted an inquisitorial process in which he initially questioned the Respondent and then engaged in a detailed exchange with counsel for the Applicant, Mr Doherty. Once it became apparent to the Magistrate that the Respondent did not dispute making the Agreement, he focused on what costs estimates were given to her before the making of the agreement. Mr Doherty informed the Magistrate that the only information about costs that was provided to the Respondent prior to signing the Agreement was that the solicitor-client costs and party-party costs meant that the Agreement was unenforceable. This prompted the Applicant to ask Mr Doherty to call him into evidence. The Magistrate questioned him extensively, with some of the questions being in the nature of a vigorous cross-examination. The Magistrate firmly expressed the view that the Agreement was unenforceable, and Mr Doherty applied for leave to amend the complaint to plead a claim in quantum meruit and for an adjournment of the hearing to enable to do him so. The Magistrate granted this. The Magistrate did not publish any discrete reasons for his decision, but stated his reasons were those he articulated during the course of the hearing (Magistrate’s Decision).[18]
[18] [6]-[9] Kuek v Wade [2017] VSCA 329.
On 29 June 2016, Magistrate Michael Smith made a self-executing order which granted leave to the Applicant to amend his complaint and provided that the proceeding be struck out if an amended complaint was not filed within 30 days (Magistrates’ Court Order).[19]
[19] [10] Kuek v Wade [2017] VSCA 329.
The Applicant prepared an amended complaint which claimed $13,953 on the basis of quantum meruit. When the Applicant attempted to file the amended complaint on 3 August 2016, this being five days after the expiration of the period specified in the Magistrate's Court Order, the Magistrates' Court refused to accept it.[20]
[20] [11] Kuek v Wade [2017] VSCA 329.
On 25 August 2016, the Applicant sought judicial review of the Magistrates’ Court Order on the grounds of jurisdictional error, denial of procedural fairness, apprehended bias and error of law on the face of the record.[21]
[21] [12] Kuek v Wade [2017] VSCA 329.
On 1 March 2017, the application for judicial review was heard by Bell J in the Supreme Court of Victoria. The Respondent was self-represented. At the conclusion of the hearing, Bell J made orders dismissing the application on the basis that, even if the grounds of review were made out, relief should not be granted to the Applicant in the exercise of the Court's discretion. The discretionary matter relied upon by Bell J was that the Applicant had available to him an adequate alternative remedy, the filing of an amended complaint which he failed to exercise.[22]
[22] [13] Kuek v Wade [2017] VSCA 329.
On 18 October 2017, the matter was litigated in the Supreme Court of Victoria Court of Appeal. The Applicant sought leave to appeal against Bell J's order on the grounds that the alternative remedy of filing an amended complaint was not adequate and no longer available when the originating motion was filed.[23]
[23] [14] Kuek v Wade [2017] VSCA 329.
On 15 November 2017, judgment was handed down by Tate J and Kyrou J where the application for leave to appeal was granted and the appeal was allowed.[24]
[24] [15] Kuek v Wade [2017] VSCA 329.
On 26 February 2019, the Costs Court ordered the Respondent to pay the Applicant $58,421.36 in costs (2019 Judgment Debt). Of this, $50,000 was recovered from the Appeals Costs Board, leaving $8,421.36 payable.
On 27 March 2019, Judicial Registrar Matthews (as her Honour was then) of the Supreme Court of Victoria made orders as follows:[25]
(a)Lamprini Wade pay to Gabriel Kuek $8,421.36, being the sum owing as at February 2019 under a judgment for Gabriel Kuek against Lamprini Wade entered 26 February 2019 by orders of Judicial Registrar Gourlay by instalments as follows:
(i)$116 fortnightly, by instalments with the first instalment payable on 11 April 2019 and the last instalment on 30 December 2021 being $185.36 plus a sum to be calculated equal to penalty interest accruing over the instalment period from 28 February 2019 to 30 December 2021, to Gabriel Kuek care of Access Law Lawyers, 291 Sydney Road, Brunswick, VIC 3056.
[25] PDF page 21 of 79 of the Wade December Affidavit.
The Judicial Registrar Matthew’s orders noted in other matters:
(a)on 26 February 2019 Judicial Registrar Gourlay made orders that the Applicant’s costs, to be paid by the Respondent, were assessed and allowed in the sum of $58,421.36;
(b)by letter dated 28 February 2019 the solicitor’s for the applicant advised the Respondent that the appeals Costs Board had paid $50,000 of the $58,421.36 ordered, leaving a balance of $8,421.36; and
(c)this Order is authenticated by the Judicial Registrar pursuant to Rule 60.02(1)(b) of the Supreme Court (General Civil Procedure) Rules 2015.
(Instalment Order).[26]
[26] Page 42 of the Respondent's affidavit on 25 September 2024 and [13] Kuek v Wade & Anor.
According to the Respondent from April 2019 to April 2023, she made 105 payments to the Applicant of $117, totalling $12,285 including $8,421.36 in respect of the 2019 Judgment Debt.[27]
[27] Affidavit of the Respondent sworn 12 August 2025 at [5].
In June and August 2022, the Magistrates' Court of Victoria made orders as follows: [28]
(a)on 23 June 2022, the Respondent pay the Applicant the sum of $29,853.76;
(b)on 5 August 2022, the Respondent pay the Applicant the sum of $709.10;[29] and
(c)on 25 August 2023, the Respondent pay the Applicant the sum of $451.00.[30]
(2022/3 Judgment Debts, 2022/3 Orders).
[28] [2], [14] Kuek v Wade & Anor.
[29] Kuek September Affidavit, [6].
[30] Affidavit of the Respondent affirmed 10 September 2025 at [6].
On 7 December 2023, the Official Receiver issued a Bankruptcy Notice addressed to the Applicant on the application of the Respondent requiring her to pay the amount of $35,184.82 in respect of orders totalling $31,013.86 together with accrued interest. The Bankruptcy Notice was based on the 2022 Judgment Debts.
On 29 December 2023, the Applicant filed an application in the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) seeking to set aside the Bankruptcy Notice.
On 17 January 2024, the Respondent presented a creditor’s petition against the Applicant in the FCFCOA (Creditor’s Petition).[31]
[31] Kuek March Affidavit Exhibit GK-1.
On 1 February 2024, Orders were made by Registrar Edwards of this Court for:
(a)the further hearing of the set aside application is adjourned to 7 March 2024 at 11am;
(b)the applicant serve a copy of her application materials, together with a sealed copy of this order, on the respondent by 16 February 2024; and
(c)the applicant file an affidavit of service deposing to service of the documents referred to in order 2, as soon as practicable after effecting service.
On 23 February 2024, Orders were made by Registrar Edwards of this Court for the further hearing of the application be adjourned to 21 March 2024 at 2:15pm.
On 21 March 2024, Orders were made by Registrar Ellis of this Court that:
(a)the Applicant file and serve submissions of no more than five pages in length by 4:00pm on 4 April 2024;
(b)the Respondent file and serve any submissions in reply of no more than five pages in length by 4:00pm on 11 April 2024;
(c)the application be fixed for hearing at 9:30am on 21 May 2024;
(d)costs reserved; and
(e)liberty to apply.
On 21 May 2024, orders were made by Registrar Ellis of this Court as follows: [32]
(a)Bankruptcy Notice 262669 is set aside; and
(b)no order as to costs.
(Registrar’s Decision/Orders).
[32] Order 1 of the Orders made by Judicial Registrar Ellis on 21 May 2024.
On 21 May 2024, Registrar Ellis made orders in proceeding MLG109/2024 that “the application be dismissed”. Given that the order was made in the Creditor’s Petition proceeding, the reference to “the application” is likely to be a reference to the Creditor’s Petition.
On 5 June 2024, the Magistrates' Court of Victoria filed a request for warrant to seize property to recover $32,714.29 which is the amount owing.
On 6 June 2024, the Magistrates' Court of Victoria issued a warrant to seize property to the Sheriff (Warrant).[33]
[33] [1] Kuek v Wade & Anor.
On 19 September 2024, the Sheriff seized a forest green 1967 Chrysler Valiant (vehicle) pursuant to the Warrant.[34]
[34] [1] Kuek v Wade & Anor.
On 26 September 2024, the Respondent applied to stay further execution of the warrant and argued that the Registrar of the FCFCOA in separate bankruptcy proceedings found that the judgment debt had been compromised and therefore the Applicant could not properly raise the issue again in the Magistrates' Court.[35]
[35] [3] Kuek v Wade & Anor.
On 19 February 2025, 13, 24, 25 March 2025, 3 April 2025, 14 May 2025, in the Magistrates' Court of Victoria, Magistrate TW Greenway heard the parties and the Sheriff of Victoria on the issue that the Respondent alleged her debt was the subject of judgment compromised and the claimant, Ms Margarita Wade, asserted ownership of the seized property.[36]
[36] Kuek v Wade & Anor.
On 17 July 2025, Magistrate TW Greenway handed down judgment in the matter. The Court decided on two matters, the first being whether the FCFCOA had determined that the judgment debt was compromised and whether the claimant, Ms Margarita Wade is the owner of the vehicle. The Court found that Ms Margarita Wade was the owner of the vehicle.[37]
[37] [6] Kuek v Wade & Anor.
On 12 August 2025, the Respondent filed the Extension and Review Application.
This matter was heard on 12 September 2025 for a final Hearing before me.
RESPONDENT’S SUBMISSIONS
The Respondent relied on an outline of submissions dated 11 September 2025.
The Respondent’s counsel made oral submissions at the Hearing.
The Respondent identified evidence relied upon in support of the contention that the Bankruptcy Notice served on the Applicant had attached to it the 2022 Orders.
The Respondent went through the evidence concerning payment so as to demonstrate that what the Applicant repaid was the 2019 Judgment Debt and not the 2022/3 Judgment Debts, save for a relatively small amount.
The Respondent relied on the distinction drawn by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment,[38] concerning the question of “finality”:
Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision maker aware that he contests the finality of the decision (who has not "rested on his rights": per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at p 287) and a case where the decision maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (Morling J, 3 April 1984, not reported) at p 18 with Lucic at pp 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 ALR 517 at p 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at p 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.
[38] (1984) 3 FCR 344; [1984] FCA 186.
Where appropriate, I identify and address the Respondent’s submissions below.
APPLICANT’S SUBMISSIONS
The Applicant did not file written submissions.
The Applicant’s counsel made oral submissions at the Hearing.
The Applicant made submissions concerning:
(a)the principles to be applied with respect to applications to extend time under court rules;
(b)shortcomings in the Respondent’s explanation for the delay;
(c)whether the Bankruptcy Notice served on the Applicant had attached to it the 2022 Orders, and whether it was otherwise valid;
(d)alleged persistent failures by the Respondent in compliance with the relevant rules of court, a matter characterised as a “pattern of disregard”; and
(e)the “accord and satisfaction” claimed by the Applicant, and the Respondent’s acknowledgment of payment of $3,861 (an overstatement) in respect of the 2022 Orders.
Where appropriate, I identify and address the Applicant’s submissions further below.
PRINCIPLES
Review of Registrar’s Decision
Section 254 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides for the making of Rules of Court for the delegation of any of the powers of the FCFCOA to a delegate which includes a Senior Registrar or a Registrar.
Rule 2.02 of the Bankruptcy Rules provides that for the purposes of s 254(2)(1) of the FCFCOA Act, the powers of the court referred to in Part 1 and Part 2 of Schedule 1 are prescribed. Item 10 of Part 1 of Schedule 1 provides that s 30(1) ("Power to set aside a bankruptcy notice") may be exercised by a Registrar.
Section 256(1) of the FCFCOA Act provides that a party to proceedings in which a delegate has exercised any of the powers of the FCFCOA under s 254 may apply to the Court for review of that exercise of power. The application for review must be made within the time prescribed under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) or within any further time allowed in accordance with the Rules.
Rule 2.02(3) of the Bankruptcy Rules provides that subject to any contrary direction by the Court of a Judge, an application for review must be made within 21 days after the day on which the power was exercised.
Rule 21.04 of the 2021 Rules provides that a review of the exercise of power by a Registrar must proceed by way of a hearing de novo,[39] in other words, "anew" or "afresh".
[39] Bechara v Bates (2021) 286 FCR 166 (Bechara) per Allsop CJ, Markovic & Colvin JJ at [17] – [31]. In Totev v Sfar (2008) 167 FCR 193, Emmett J held that this entailed “a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar” (at [10]).
Section 256(2) of the FCFCOA Act provides that on a review, the court may "and may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised". On a successful review, the court may set aside the exercise of the delegated power and make consequential orders to unwind the effect of the exercise of that power.[40] Where the review is dismissed, the order made by the delegate continues as a valid and authorised exercise of judicial power from the time of the exercise of that delegated power.[41]
[40] Robson v Body Corporate for Sterling at Kings Beach CTS 2942 (2021) 286 FCR 494 per Allsop CJ (Markovic & Derrington JJ agreeing) at [2]–[4] and [18] [29].
[41] Section 254(4) of the FCFCOA Act.
The evidence that was before the Registrar may be supplemented by any other evidence on the hearing of the review application.[42]
[42] Re Kwiatek; Ex parte Big J Ltd v Pattison (1989) 21 FCR 374; 89 ALR 631; Re Brindle: Ex parte FB & FA McMahon Pty Ltd (1992) 35 FCR 506; 108 ALR 470; Ginnane v Diners Club Ltd (1993) 42 FCR 90; 120 ALR 375; Re Gray; Gray v Ball BC9707278; [1997] FCA 1512.
CONSIDERATION
On 21 May 2024, a Registrar made a decision to set aside the Bankruptcy Notice served by the Respondent on the Applicant. The Registrar made this decision exercising delegated power pursuant to s 254(1) of FCFCOA Act.[43]
[43] See also item 58 in r 21.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Rule 2.02(3) of the Bankruptcy Rules provides that an application for the review of the exercise of a power by a Registrar must be made within 21 days. The Registrar’s Decision was made on 21 May 2024, which means that the last day for filing the Application for review was (Tuesday) 11 June 2024. The Application for review was filed on 2 August 2025. Therefore, the Application for review was made 417 days out of time.
The Respondent has sought an extension of time to review the Registrar’s Decision.
I refuse the extension of time for the reasons that are set out below.
The application for an extension of time provided for in r 2.02(3) of the Bankruptcy Rules involves the Court exercising the discretion provided for also in r 2.02(3).
In Hawkins v Kingsway Group Ltd,[44] Stone J stated:
The court’s general power to extend time is to be found in O 3 r 3 of the Federal Court Rules. It is a wide power that permits the court to extend or abridge the time before or after the time expires, at the discretion of the court. In Bishop v R (1982) 40 ALR 40 Deane J considered the principles to be applied in the exercise of the court’s discretion. At 42, his Honour quoted with approval the following statement of Cullen CJ in Morres v Papuan Rubber & Trading Co Ltd (1914) 14 SR(NSW) 141 at 144:
… when a party, who has neglected to observe those requirements which the rules place him under for the protection of the other side, comes for the indulgence of the Court to ask that the proceedings shall continue notwithstanding that default, he has to satisfy the Court that justice requires that that default of his shall be overlooked, and he must satisfy the Court that there is some reasonable kind of explanation or excuse for his neglect of the rules.
As Deane J observed, the explanation required will depend on the circumstances of the case. In addition to the explanation for the delay, however, it has generally been accepted, in relation to a wide range of applications, that it is also necessary to consider the likelihood of prejudice to the respondent and whether the applicant for an extension of time has an arguable case: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349 per Wilcox J; Bahonko v Royal Melbourne Institute of Technology [2006] FCA 1325 at [21]–[24] per Weinberg J; Bahonko v Nurses Board (Vic) (No 4) (2007) 97 ALD 721 at [48] per Middleton J.
It is for the court to weigh up all three factors and exercise its discretion accordingly. In particular circumstances one factor may outweigh the others. For example, an extension of time may be granted where the applicant has a strongly arguable case, even in the case of long delay for which the explanation is not strong. Similarly the prejudice to a respondent who, the prescribed time for appeal having expired, has exercised his or her rights under the decision from which an applicant now seeks to appeal, may be sufficient to justify the court exercising its discretion to refuse an extension of time.
[44] [2009] FCA 1073; BC200908919.
Matters that are relevant to the exercise of the discretion include:
(a)the length of the delay and the explanation for it;[45]
(b)any prejudice to the other party caused by the delay,[46] or that may be presumed;[47]
(c)impact on the party seeking the extension of a refusal to grant an extension; and
(d)the merits of the substantive application which also informs the question of whether any purpose would be served by granting an extension.[48]
[45] Di Iorio v Wagener [2015] FCA 524; BC201504416 (Di Iorio).
[46] Perovich v Tesla Nominees Pty Ltd [2006] FMCA 1342.
[47] See for example Horne in their capacity as joint and several liquidators of Australian Property Custodian Holdings Ltd (recs and mgrs apptd) v Retirement Guide Management Pty Ltd (2017) 54 VR 325 at [161].
[48] Di Iorio; BC201504416.
The time prescribed by a legislative provision (here rule) should not be ignored.[49]
[49] Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550.
Generally speaking, the longer the delay, the more persuasive the explanation needs to be,[50] such that where the extension required is for a comparatively short period, a less persuasive explanation may be required.[51]
[50] Jess v Scott (1986) 12 FCR 187 at 195.
[51] SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6].
In Jackamarra v Krakouer,[52] Gummow and Hayne JJ discussed the pernicious effect of delays associated with court proceedings:[53]
Delays in the courts are a major cause of disquiet not only among those who resort to the courts but also among judges and all others associated with the courts. Delay will almost always impede the proper disposition of any case that does not come to trial promptly. Memories fade; records may be lost. The impediments are many, varied and obvious. Those impediments may be overcome but their presence is an added burden for both the litigants and the court that must try the case. Delay in a case will almost always add to the costs. The case takes longer to prepare and to try because the events are no longer fresh in the minds of those who will give evidence. Costs, therefore, increase. Delay in a case also adds to the overall burden on the judicial system. The case that has been delayed in coming to trial and therefore takes a day longer to try than otherwise would be needed, keeps another case out of the lists for that day. Or, as happened here, the case that has been delayed occupies the courts by applications to remedy some failure to comply with prescribed time limits. Each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants. No doubt there are other reasons for the disquiet felt by both litigants and lawyers about delay but the matters we have mentioned indicate why it is so important to avoid delays wherever possible.
(Emphasis added)
[52] (1998) 195 CLR 516.
[53] At [29].
In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[54] the High Court held that the Trial Judge had not committed jurisdictional error by forming the view that the substantive application lacked merit in the context of an application for an extension of time under s 477(2) of the Migration Act 1958 (Cth) for the grant of remedy under s 476 of the Act. The extent and manner of consideration of the merits is a matter for the court,[55] which may include “impressionistic” assessment.[56]
[54] (2022) 276 CLR 579.
[55] Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 276 CLR 579 (Tu’uta Katoa) at [19].
[56] Tu’uta Katoa at [65].
I turn now to the merits of the Application for an extension of time.
The delay and explanation for it must be considered in the context of the purpose served by the time limit set by r 21.02(3) of the Bankruptcy Rules, and the public interest generally.
In Becharav Bates (Bechara),[57] the Full Court commented that a review of sequestration order ought to be heard promptly:
Applications for review of exercises of delegated power by registrars should be reheard by judges de novo as soon as reasonably practicable. This is especially so in bankruptcy, and even more so if it is a review of a sequestration order that changes the status of a debtor, enlivens powers of a trustee and brings about changes to property. Delay is not only prejudicial to the debtor or bankrupt, but also to the creditor and potentially to members of the public.
[57] (2021) 286 FCR 166.
In the context of an application to set aside a Bankruptcy Notice, there is also a public interest in the resolution of de novo reviews “as soon as reasonably practicable”. As a result of the doctrine of “relation back”,[58] the commission of an act of bankruptcy is a matter that has the potential to affect any person dealing the Applicant. Any question concerning the validity of a Bankruptcy Notice served on a debtor should be resolved expeditiously.
[58] See s 115(1) of the Bankruptcy Act and Re Politt; Ex parte Minor (1893) 1 Q.B. 455 at pp 457-458; Deputy Commissioner of Taxation (NSW) v Donnelly (1989) 25 FCR 432; Di Cioccio v Official Trustee in Bankruptcy [2015] FCAFC 30; BC201501292; Rambaldi v Mullins (No 2) [2016] FCA 977 (22 August 2016); Yeo (Trustee) in the matter of Taib (Bankrupt) v Melnik [2025] FedCFamC2G 1486 (12 September 2025).
On the other hand, there is a “constitutional imperative”[59] that the exercise of delegated judicial power be subject to the effective control and supervision of judges appointed pursuant to s 72 of the Constitution.[60] The requirements for a Constitutionally valid delegation of power are:[61]
i. A delegation must not be, either practically or theoretically, an abdication by the court of its jurisdiction, powers or functions so that the judges can no longer be said to constitute the court: Mason CJ and Deane J at 95, Dawson J at 122, Gaudron J at 149, McHugh J at 164.
ii. A delegation must not be inconsistent with the obligation of a court to act judicially and the decisions of the officers of the court in the exercise of the delegated jurisdiction, powers and functions must be subject to review by a judge or judges of the court: Mason CJ and Deane J at 95, Dawson J at 122, Gaudron J at 151 and McHugh J at 164.
[59] Bechara v Bates per Allsop CJ at [3].
[60] Harris v Caladine (1991) 172 CLR 84 per Mason CJ and Deane J at [10].
[61] Cheesman v Waters (1997) 148 ALR 21 (Cheesman).
In the case of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act), rules which provide for de novo review have been held to constitute a Constitutionally valid delegation of power,[62] but the “constitutional imperative” does not require that time limits provided for in r 2.01 of the Bankruptcy Rules be disregarded or ignored.
[62] See Cheesman.
The length of delay in the present case is 417 days, which is more than one year in excess of the 21 days provided for by the Bankruptcy Rules.
The Respondent’s explanation for the delay includes the following:
(a)at the time the orders were made, he considered that it would be futile and inconsistent with s 190 of the FCFCOA Act to seek a review in circumstances where the Registrar had found that the Bankruptcy Notice that was served did not have attached to it a copy of the order orders the subject of the notice;[63]
(b)instead, he caused a Warrant to seize property to be issued in the Magistrates’ Court. A vehicle was seized under that Warrant. The Applicant filed a summon seeking the return of the vehicle on the basis that it was owned by her daughter;[64]
(c)the Magistrate set aside the Warrant on two grounds:[65]
(i)first, the finding made by the Registrar that the judgment debt claimed by the Respondent in the Bankruptcy Notice had been paid gave rise to a res judicata – such that the finding that there was no debt owing under the 2022 Order could not be challenged; and
(ii)second, the vehicle was, on the evidence, owned by the Applicant’s daughter and not the Applicant; and
(d)“The Magistrates’ Court Order prevents me from enforcing the judgment debts. Therefore, I have no choice but to seek review of Registrar Ellis’s finding that the respondent had made full and final payment of the debts”. [66]
[63] Respondent’s Affidavit sworn 12 August 2025 at [12].
[64] Respondent’s Affidavit sworn 12 August 2025 at [13].
[65] Respondent’s Affidavit sworn 12 August 2025 Exhibit GK-F.
[66] Respondent’s Affidavit sworn 12 August 2025 at [22]
The Registrar’s findings that gave rise to the issue estoppel were (Issue Estoppel):[67]
There has [sic] been assertions from the bar table that Ms Wade needs to prove these matters. In my view, she has proven these matters. Mr Kuek, a solicitor who is legally represented, could have put on evidence if this was not correct and has chosen not to do so. So I accept the evidence that has been put before me and I accept that the payments made were full and final payments of the debt, given the use of those words in the letter to which Mr Kuek did not respond indicating that he did not accept that position.
(Emphasis added)
[67] Respondent’s Affidavit sworn 12 August 2025 at p 97. Magistrates’ Court Decision at p 16.
As a result of this finding, Magistrate TW Greenway found that the Registrar’s determination of payment gave rise to an Issue Estoppel:[68]
It follows that the judgment debt was the subject of a determination in the bankruptcy proceeding. The finding that no debt was owing removes the basis for the warrant issued in the present case. The warrant must therefore be set aside, and the vehicle returned.
[68] Respondent’s Affidavit sworn 12 August 2025 at p 99. Magistrates’ Court Decision at p 16.
The Respondent’s affidavits do not squarely confront the explanation for the delay. To say that the Magistrates’ Court Order “prevents” enforcement elides the question as to why enforcement was considered a viable course in the first place. It is left for the court to infer what the actual reasons for the delay were. Those reasons appear to be:
(a)the Respondent assumed wrongly that the Registrar’s Decision would not prevent him from enforcing the 2022/3 Judgment Debts by way of a warrant for seizure and sale;
(b)the Respondent did not consider that it was appropriate to seek to review the Registrar’s Decision in circumstances where the Bankruptcy Notice was fatally defective (because at least for a time, he accepted that the document served did not have attached to it a copy of the 2022/3 Orders);[69]
(c)as a consequence of the Magistrate’s Decision (made on 17 July 2025), it became apparent to the Respondent that in order to enforce the 2022/3 Judgment Debts, he would need to set aside the Registrar’s Decision (which the Magistrate found compelled the conclusion that the 2022/3 Judgment Debts had been repaid);[70] and
(d)more recently, the Respondent has obtained “fresh advice” and is now of the view that it would not be futile to seek a review of the Registrar’s 21 May 2024 Order; something described before me as an “epiphany”. This is because the Respondent’s “attention has been drawn to Exhibit “BD-1” to the Djung Affidavit.[71]
[69] Respondent’s Affidavit sworn 12 August 2025 at [12].
[70] Respondent’s Affidavit sworn 12 August 2025 at [22].
[71] Respondent’s Affidavit sworn 10 September 2025 at [3].
Underlying the Respondent’s current approach are several assumptions. The first assumption is that the Issue Estoppel found by Magistrate TW Greenway prevents the Respondent from enforcing “judgment debts” generally, as opposed to just the 2022/3 Judgment Debts. One possibility[72] is that amounts that the Respondent assumed had been applied against the 2019 Judgment Debt (in relation to the Court of Appeal matter) must now be treated as having been applied in discharge of the 2022/3 Judgment Debts, leaving the 2019 Judgment Debt unpaid, and therefore enforceable. The second assumption is that there would be utility in a review of the Registrar’s Decision even though he does not challenge orders dismissing the Creditor’s Petition that was based upon non-compliance with the Bankruptcy Notice. These assumptions are considered further, below.
[72] This is not a matter that I need to resolve for the purpose of this application to extend time.
In my opinion, it was not reasonable for the Respondent not to investigate the question of whether the Bankruptcy Notice served on the Applicant had attached to it a copy of the judgments or orders that were relied upon. Given that service was affected by email, this question was readily capable of investigation and resolution by the Respondent and his lawyer. Further, it was not reasonable for the Respondent to assume that the findings made by the Registrar could be disregarded in enforcement proceedings.
I am not satisfied that the Respondent has a satisfactory excuse for the delay in his application to review the Registrar’s Decision.
In relation to the possibility that the 2019 Judgment Debt has not been discharged, as six years has elapsed since the order giving rise to the order was made, that debt could not found a Bankruptcy Notice.[73] On the other hand, there is no requirement under the Magistrates' Court General Civil Procedure Rules 2020 (Vic) conditioning enforcement of an order that is more than six years old with a leave requirement,[74] but leave would be required if the judgment were registered in the Supreme Court of Victoria.[75] I also note that the amount of the 2019 Judgment Debt is significantly less than the balance of what the Respondent claims is owed under the 2019 Orders and the 2022/3 Orders.
[73] Section 41(3)(c) of the Bankruptcy Act.
[74] See Order 66; Guss v Deputy Commissioner of Taxation (2015) 238 FCR 509 at [105].
[75] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 68.02(1)(a); see Commonwealth Bank of Australia v Saggese (2018) 55 VR 241.
In Grundy v Wattyl Australia Pty Ltd,[76] Downes J highlighted the relevance of a deliberate forensic decision not to apply for review to the exercise of the discretion:[77]
In proceeding in this way I do not think that the Federal Magistrate erred. The delay in making the application for review was very substantial. There was little explanation for it other than the ignorance of the appellant and advice he was being given, including advice from his own legal advisor, that the application would be likely to fail. In a real sense, the applicant took a considered decision not to apply for review. That he subsequently changed his mind is no explanation of delay. Although the applicant is unrepresented he did seek legal advice on his prospects of bringing a challenge to the bankruptcy. Whether the advice he was given was good advice or not I cannot say. However, relevantly, the applicant is little different from a represented party who takes advice not to appeal, acts on it, and much later changes his mind. Such circumstances do not generally constitute an explanation for delay.
(Emphasis added)
[76] BC200207123; [2002] FCA 1480.
[77] At [24].
In Tran v Minister for Immigration and Border Protection,[78] Wigney J stated:[79]
On his release from prison and upon his transfer to immigration detention in December 2012, Mr Tran applied for legal aid. That application was rejected because the prospects of successfully challenging the Tribunal’s decision were low. He then received legal advice that he could or should pursue other avenues potentially available to him under the Act. It appears that he also was advised to write to the Minister seeking his intervention. He apparently took both these steps, however both were unsuccessful. It was at this time that Mr Tran began to do his own research. He discovered the existence of the Direction and formed the view that the Tribunal had not correctly applied the Direction.
This explanation for the 18 month delay is neither adequate nor satisfactory. The fact that Mr Tran initially received legal advice that any application for review of the Tribunal’s decision would have limited prospects is not a sufficient explanation; all the more so when it would appear that this was sound advice. The lack of legal advice (or in this case, the lack of positive legal advice) is not alone a sufficient excuse for failure to lodge an appeal (or in this case an application for review) within time: SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8]; SZJRV v Minister for Immigration and Citizenship [2008] FCA 298 at [6]; Manna at [17].
Nor does the fact that Mr Tran chose, albeit on advice, to pursue other avenues available to him under the Act provide a satisfactory explanation for the delay: Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [29]; Sithamparapillai, Ex parte - Re MIMA [2004] HCATrans 364; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279; Manna at [16]. Mr Tran made a conscious decision not to pursue a challenge to the Tribunal’s decision, albeit apparently based on advice he received concerning other avenues supposedly open to him. He ought not now be permitted to effectively resile from that decision.
As for Mr Tran’s own research and his discovery of the Direction, it would appear that he had the facilities to conduct such research from the time he was released from prison and went into immigration detention in December 2012. Yet he did nothing in terms of filing an application for another year. He has not sought to explain that delay.
The delay here is excessive. In general the longer the delay, the more persuasive the explanation needs to be: Jess v Scott (1986) 12 FCR 187 at 195. The absence of any satisfactory, let alone persuasive, explanation for the delay would itself be a sufficient basis to refuse Mr Tran’s application for an extension of time.
(Emphasis added)
[78] [2014] FCA 533.
[79] At [34] – [38].
Against this, in Wright v Corani,[80] the South Australian Court of Appeal gave leave to an appellant to appeal out of time in circumstances where the decision not to appeal was based upon a misunderstanding of the effect of the District Court decision. The Court described the relevant misunderstanding as “misguided or somewhat careless, but having regard to the basis on which the agent’s liability was determined, not unreasonable.” The Court held that the vendor’s assumption that if the agent was successful in its appeal, it would follow that they would get the benefit of that outcome and moneys paid out on the basis of previous liability refunded to them.
[80] [2006] SASC 115; BC200602667.
In Gallo v Dawson,[81] McHugh J held that the discretion to extend time for leave applications under the High Court Rules “is given for the sole purpose of enabling the court to do justice between parties.” His Honour explained:[82]
In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … It is always necessary to consider the prospects of the applicant succeeding in the appeal.
[81] (1990) 93 ALR 479.
[82] At [26].
It would appear to me that the Respondent “took a considered decision not to apply for review”. He may have been wrong in the assumption that he made concerning the effect of the Registrar’s Decision in relation to repayment, or at least as to how the Magistrates’ Court would treat the Registrar’s Decision. Nevertheless, the choice not to seek a review was a choice that the Respondent, who is both a lawyer and legally represented, made. It is not a satisfactory explanation for the 417 day delay.
Fortifying my conclusion (of lack of satisfactory explanation) is the fact that despite the Magistrate’s Decision, the Applicant waited a further 26 days before seeking to review the Registrar’s Decision, which is itself longer than the 21 days provided for in r 2.02(3) of the Bankruptcy Rules.
The next question is whether there has been any prejudice to the Applicant in the Respondent’s delay in seeking review of the Registrar’s Decision.
The Applicant has deposed the impact of prolonged litigation on herself and her husband.[83] The Applicant attached a letter of support from Brett McKinnon, Mental Health Nurse Practitioner dated 8 March 2024 concerning her husband. The letter paints a devastating picture of the effect of litigation on him. The letter of support is more than a year old now. It does not purport to be an independent expert opinion; rather it is couched in terms of advocacy for a patient. It does not address the specific question of whether the delay in seeking review (as opposed to the litigation generally) will exacerbate her husband’s conditions. Having regard to these matters, I am unable to place any significant weight on that evidence.
[83] Affidavit of the Applicant sworn 10 September 2025.
The Applicant has deposed that “these proceedings have had a substantial emotional impact upon both myself and my husband”.[84] Nevertheless, read in context, the reference to “these proceedings” appears to be a reference to the totality of proceedings between the parties going back to 2015, which has its genesis in the Applicant’s failure to pay to the Respondent an amount which the Magistrates’ Court has adjudicated was in fact owed.
[84] Affidavit of the Applicant sworn 10 September 2025 at [13].
The Applicant’s daughter in her affidavit annexed a statement of the same date (on behalf of herself and her siblings) setting out her observations of the effect of “the past 5 years” litigation on her mother, the Applicant and their family. It also paints a devastating picture of the effect of litigation.[85] The evidence has many of the same shortcomings as the evidence of Mr McKinnon. Nevertheless, the daughter’s observations are consistent with the general observations that: “each day's delay in bringing a case to trial and final judgment simply prolongs the uncertainty and worry felt by the litigants.”[86]
[85] Affidavit of Margarita Wade sworn 16 April 2024.
[86] Jackamarra v Krakouer (1998) 195 CLR 516.
I do not place significant weight on the question of specific prejudice to the Applicant. While the Applicant and her husband’s suffering may have been exacerbated as a consequence of the delay in seeking review, the evidence does not address that matter specifically.
The next question is what is the likely impact on the party seeking the extension of a refusal to grant an extension. While I do not need to resolve all the questions that underlie the Respondent’s approach, I proceed on the basis that it is possible a successful review by the Respondent might enable him to overcome the Registrar’s finding that the 2022/3 Judgment Debts had been repaid so as to enable him to enforce that debt. Conversely, refusal of a review might mean that the Respondent has no means of overcoming the Registrar’s Decision in relation to payment, or at least a significant part of it.
Impact of a refusal to grant an extension is a matter that weighs in favour of the Respondent.
I turn then to the merits of the Applicant’s application to set aside the Bankruptcy Notice.
If an extension were granted, the review would proceed by way of a hearing de novo of the Applicant’s application to set aside the Bankruptcy Notice. While the Bankruptcy Act does not contain an express power to set aside a Bankruptcy Notice, such a power is “necessarily to be inferred” from the general powers of the court in s 30(1) of the Act.[87]
[87] Bryant v Commonwealth Bank of Australia (1994) 217 ALR 251; Re Sterling: Ex parte Esanda Ltd (1980) 30 ALR 77 at 82–3; 44 FLR 125 at 129–31; Re Lentini: Ex parte Lentini v CSR Ltd (1991) 29 FCR 363 at 367–72.
At the hearing before me, the Applicant sought to rely on four grounds:
(a)the 2022/3 Judgment Debts had been paid or discharged;
(b)in the alternative to (a), the amount claimed in the Bankruptcy Notice was overstated;
(c)the Bankruptcy Notice was defective because it did not have attached to it the judgments or orders relied upon by the Applicant (i.e. the 2022/3 Orders); and
(d)further or in the alternative to (c), attachment of the 2022/3 Orders was not sufficient compliance with the Bankruptcy Regulations 2021 (Cth) (Regulations) and that what was necessary was attachment of a copy of the reasons for judgment so it to explain the basis of the debt claimed.
Another ground emerged from the oral submissions, namely, that the act of bankruptcy constituted by non-compliance with the Bankruptcy Notice is now stale and therefore the issue raised by the Application has become moot. Whether or not this is strictly a ground for setting aside the Bankruptcy Notice, it appears to me that it is a matter that is relevant to the discretion to extend time. I start my consideration with the question of whether the Application (and hence Extension and Review Application) is moot.
Section 44(1)(c) of the Bankruptcy Act provides that a creditors petition shall not be presented against a person unless, amongst other things, the act of bankruptcy on which the petition was founded was committed within six months before the presentation of the petition.
The time for compliance with the Bankruptcy Notice would have ended 21 days after service of the notice on 8 December 2023,[88] but for, the Registrar’s Decision, the act of bankruptcy expired more than six months ago. Further, and to put the question beyond doubt, the Creditor’s Petition that was presented in reliance on that act of bankruptcy was dismissed by the Registrar, and there is no application to review that order.
[88] Affidavit of the Applicant sworn 29 December 2023.
On the other hand, for reasons which I will explain later in these reasons, the Extension and Review Application might have some utility as a means of overcoming the findings in the Registrar’s Decision that created the Issue Estoppel.[89]
[89] See Kuek v Wade & Anor (unreported, 17 July 2025) at [32] to [49].
The next ground for setting aside the Bankruptcy Notice is the Applicant’s claim that the document served on her did not have attached to it a copy of 2022/3 Orders.
Section 40(1)(g) of the Bankruptcy Act provides that an act of bankruptcy occurs when a creditor, who has obtained against a debtor a final judgment or final order (which has not been stayed), has served on the debtor (in Australia) a Bankruptcy Notice, and the debtor does not within the time specified in the notice “comply with the requirements of the notice or satisfy the court that he or she has a counter-claim, set-off or cross-demand equal to or exceeding the amount of the judgment debt or sum payable under the final order…“.
Section 41 of the Bankruptcy Act relevantly provides:
Bankruptcy Notices
1. An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:
a. a final judgment or final order that:
i. is of the kind described in paragraph 40(1)(g); and
ii. is for an amount of at least $5,000; or
b. 2 or more final judgments or final orders that:
i. are of the kind described in paragraph 40(1)(g); and
ii. taken together are for an amount of at least $5,000.
Section 41(2) provides that:
2. The notice must be in accordance with the form prescribed by the regulations.
3. A bankruptcy notice shall not be issued in relation to a debtor:
a. except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;
…
Regulations 8 of the Regulations provides:
1. This section sets out the requirements for an application to the Office Receive for a bankruptcy notice by a person who has obtained against a debtor one, or 2 or more, final judgments or final orders of a kind described in paragraph 40(1)(g) of the Act.
2. The application must be in the approved form.
3. The application must specify the final judgment or final order or each of those final judgments or final orders.
4. The application must include:
a. if any final order specified in the application is an award that is a final order because of subparagraph 40(3)(a)(i) of the Act – both of the following:
i. a copy of the award certified as a true copy by the arbitrator who made the award or by an officer of the Court who has compared the copy with the original award;
ii. a sealed or certified copy of the order giving leave to enforce the award; and
b. for any other final order or final judgment specified in the application – at least one of the following:
i. a copy of the sealed or certified judgment or order;
ii. a certificate of the judgment or order sealed by the court that made the judgment or order (the relevant court) or signed by an officer of the relevant court;
iii. a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the relevant court or signed by an officer of the relevant court.
Regulations 9 of the Regulations provides:
1. For the purposes of subsection 41(2) of the Act, the form of bankruptcy notice set out in Schedule is prescribed.
2. A bankruptcy notice must follow that form in respect of its format (for example, bold or italic typeface, underlining and notes).
3. Subsection (2) does not limit section 25C of the Acts Interpretation Act 1901.
In Curtis v Singtel Optus Pty Ltd,[90] (Curtis) the Full Court held that “it is a requirement of the Act and the Regulations that at the time of issue, a bankruptcy notice must have attached to it a copy of the relevant judgment or order”. The court held that the relevant requirement was not one made essential by the Bankruptcy Act, and therefore, substantial, as opposed to strict compliance was sufficient. On the facts of the case before it, the court found that at the time of issue the copy judgment was attached to the bankruptcy notice.
[90] (2014) 225 FCR 458.
I turn to consider the evidence as to what was served.
Benjamin Djung, solicitor for the Respondent, has deposed as follows:[91]
[91] Affidavit of Benjamin Djung sworn 17 January 2024.
Bankruptcy notice and its service
On 8 December 2023, the Official Receiver authorised an amendment to a previously issued Bankruptcy Notice, issued pursuant to s 41(2) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Notice”) and setting out the relevant debt.
Now produced and shown to me marked “BD-2” is a true copy of the amended Bankruptcy Notice.
On the same date, I sent an email to the respondent to serve the bankruptcy notice from my email ([email protected]).
Now produced and shown to me and marked “BD-3” is a true copy of that email and its attachments.
Exhibit “BD-1” is a copy of the certified extracts of the 2022/3 Orders.
Exhibit “BD-2” did not have attached to it the 2022/3 Orders.
Exhibit “BD-3” did not include the attachments. However, it does evidence the fact that certified extracts of orders were attached to the email:
Attachments: 1702005871352.png (5 KB), BankruptcyNotice.pdf (FINAL).pdf (205 KB), Certified extracts of orders.pdf (2 MB)
By affidavit sworn 11 September 2025, Mr Djung deposed that the email by which the Bankruptcy Notice was served had attached to it the 2022/3 Orders.
On the other hand, the Applicant has deposed as follows:[92]
At the time this bankruptcy notice was served on me, no copies of the judgments the notice purported to refer to was served on me. At no time subsequently have any copies of these judgments been served on me.
[92] Affidavit of the Applicant sworn 10 September 2025 at [5].
I do not accept the Applicant’s contention that the affidavit of service was not in accordance with the form prescribed the 2021 Rules as required by r 6.05[93] (or now r 10.29 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (2025 Rules)). The only mandatory requirement of those rules is that “evidence of service must be given by affidavit”. The requirement in relation to the approved form is facultative (“the approved form may be used”).
[93] As applied by r 1.04(2) of the Federal Circuit and Family Court of Australia (Bankruptcy) Rules 2021 (Cth).
The documents that the Respondent claims were served with the Bankruptcy Notices (namely the 2022/3 Orders) meet the description of the document required to be included by Regulation 8 of the Regulations, namely a “certificate of the… order sealed by the court that made the judgment or order (the relevant court) [and] signed by an officer of the relevant court”.
I do not accept the Applicant’s submission that the Regulation also requires service of the reasons for judgment so as to explain the basis of the indebtedness. There is no such obligation in the Regulation. The Full Court’s comments concerning the purpose served by attachment of the “judgment”[94] need to be understood in the context of a discussion about whether the requirements in the Bankruptcy Act and Regulations were essential ones. They should not be understood as creating a Judge made requirement additional to the ones in the legislation.
[94] For example at [35] and [40].
On the evidence before me there is a reasonable case that what was served on the Respondent was a Bankruptcy Notice had “attached”[95] to it a copy of the three 2022 Orders. Given that this is an application for an extension of time, I do not need to resolve the direct conflict between the evidence of the Applicant and that of Mr Djung.[96]
[95] See Curtis at [50].
[96] Tu’uta Katoa at [65].
The next ground for setting aside the Bankruptcy Notice is that the debt claimed in the notice had either been discharged by payment or released. The Applicant’s claim is that “the creditor, the Applicant, has accepted full and final payment of the debts the subject of the notice”.[97]
[97] Affidavit of the Applicant sworn 10 September 2025 at [6].
The total of the 2019 Judgment Debt (arising from the Appeal Proceeding) was $58,421.36. Of this, $50,000 was recovered from the Appeals Costs Board, leaving $8,421.36 payable. The total of the 2022 Judgment Debts was $31,013.86. The combined total of the 2019 Judgment Debt and the 2022 Judgments Debts, without taking into account accrued interest, and making allowance for the amount recovered from the Appeals Costs Board, is $39,435.22.
The Applicant and the Respondent would appear to agree that the Applicant paid around 34 fortnightly instalments of $117 each since 2022, making total payments of around $3,978. At the hearing, counsel for the Respondent informed the court that there were 105 payments totalling $12,285, which would explain and clarify the following evidence:[98]
“The [Applicant] has paid me 34 fortnightly instalments, each of $117, totalling $12,285. Of this total, $8,421.36 was for an Order made in the Costs Court of Victoria in respect of an appeal to the Court of Appeal and a nominal amount of $2.64 was treated as payment of interest that had accrued on the $8,421.36.”
[98] Affidavit of the Respondent sworn 12 August 2025 at [5].
On the Respondent’s case, there would appear to have been an overpayment of $3,861 ($12,285 - $8,421.36 - $2.64) in respect of the 2019 Judgment Debt. Putting to one side accrued interest, the evidence suggests that the Applicant paid $8,421.36 against total debt of $39,435.22.
The first question that arises is whether the payments made by the Applicant were appropriated towards the 2019 Judgment Debt or the 2022/3 Judgment Debts. The principles governing appropriation of payments were explained by Slattery J in APX Projects Pty Ltd v The Owners — Strata Plan No 6402514.[99] Having regard to the Instalment Order, and the close correspondence between the amount and period of the payments made by the Applicant and the terms of that order, it seems to me[100] that at least prior to the date of the Applicant’s letter dated 29 March 2023, it is strongly arguable that the payments made by the Applicant were payments in discharge of the 2019 Judgment Debt.
[99] [2015] NSWSC 1250 at [30]-[35].
[100] Ignoring the Registrar’s Decision and the issue estoppel found by Magistrate TW Greenway which are not relevant because I am considering the strength of the case as it would be in a de novo hearing.
The Applicant would appear to contend that the effect of her letter dated 29 March 2023 was to release her from the obligation to pay any further amounts to the Respondent. The critical passage was:
Since 2022, I have paid 14 and a half months of instalments as of today’s date. The last instalment is going to be on Thursday, 6 April 2023. $3,393. Consider this is a full and final payment for the following orders enclosed as follows: case number F14104332 [which is the Magistrates’ Court Proceeding]
•dated: 23rd of June 2022;
•dated: 4rd of August 2022;
•dated 16th of November 2022;
•dated 19 of September 2022 to 26th of September 2022;
•dated: 5th of August 2022; and
•judgment dated: 16th November 2022.[101]
[101] Affidavit of the Applicant sworn 10 September 2025 at [7] and Exhibit “LW2”.
The bank statements filed by the Applicant show that after the 29 March 2023 letter, she made payments of $117 on 5 April 2023 and 19 April 2023.
The Applicant’s contention appears to be that the 29 March 2023 letter meant that the 5 April 2023 and 19 April 2023 payments were a conditional tender, such that acceptance of the tender gave rise to an accord and satisfaction, so as to release the balance of moneys owed under both the 2019 Judgment Debts and the 2022/3 Judgment Debts.
In McMahon’s (Transport) Pty Ltd v Ebbage,[102] (McMahon’s) Pincus JA rejected an argument that a conditional tender of moneys gave rise to an accord:
“… The cases on conditional tender of payment, although numerous, give no clear guidance. I, like the primary judge, prefer to follow those in which the Court has rejected the offeror’s assertion that there has been an accord; I do so on the basis that the question is whether there is a contract and that the answer to that question is that there is none, because in general the law does not allow the imposition of an obligation in contract to be achieved by a stipulation that it shall be deemed to be imposed if the prospective obligor performs a stipulated act (other than one by way of express assent to the terms proposed), or does nothing as in Felthouse v. Bindley (1862) 11 C.B.(N.S.) 869;142 E.R. 1037. Since writing the above, I have noticed the decision of this Court in Citibank Ltd v. Amos (App. 243/1994; 10 May 1996, unreported); the views there expressed are consistent with my conclusion: see pp. 5, 7 of the principal judgment.
In J P Morgan Australia Limited -v- Consolidated Minerals Limited [2010] NSWSC 100 Hammerschlag J said at [153] – [156]
In my opinion, objectively viewed, the defendant’s 6 February 2008 letter was not an offer at all, let alone one which articulated a condition to the effect that if the plaintiff kept the cheque it was giving up any further claim. Rather, by it the defendant informed the plaintiff how much it thought it should pay under the Engagement and that it was paying that amount in discharge of what it considered to be its obligations. Far from stipulating a condition that taking the cheque would end the matter, the letter left the matter open by concluding with a statement of “trust” that the payment would bring the matter to a close.
…
If, contrary to what I have found, the letter was an offer, it stipulated no mode of acceptance. Objectively viewed, the plaintiff’s conduct in banking the cheque did not amount to acceptance of the offer, because at the same time it dispatched a letter making it clear that this was not so.
In addition, and adopting the analysis of the Queensland Court of Appeal in McMahon’s (Transport) Pty Ltd v Ebbage [1995] 1 Qd R 185, even if upon its proper construction, the 6 February 2008 letter purported to impose on the plaintiff a binding condition under which if it banked the cheque it gave up its rights, the attempt to do so was ineffective because the general law does not so allow.”
[102] [1995] 1 Qd R 185.
The approach in McMahon’s suggests that a conditional tender would not give rise to an accord as alleged by the Applicant; noting his Honour’s observation was that the case law did not provide “clear guidance” on the question. There is a further reason to question whether the claimed conditional tender made by the Applicant gave rise to an accord and satisfaction, namely the principle that the payment of a lesser sum in satisfaction of an undisputed debt is not good consideration for an agreement to compromise that debt.[103]
[103] See Pinnel’s Case (1602) 5 Co Rep 117; Foakes v Beer (1884) 9 App Cas 605; Amos v Citibank [1996] QCA 129; Pioneer Credit Acquisition Services Pty Ltd v Hayes [2017] FCA 124.
These considerations demonstrate that there is a real question as to whether the agreement or discharge alleged by the Applicant exists or was binding on the Respondent. The Respondent has a reasonable claim[104] that the 2022/3 Judgment Debts have not been discharged and that $8,424 of the payments made by the Applicant was applied to the 2019 Judgment Debt. However, this is another dispute that I do not need to resolve in the context of the Respondent’s application to extend time.[105]
[104] Again, ignoring the Registrar’s Decision and the issue estoppel.
[105] Tu’uta Katoa at [65].
For the purpose of the Respondent’s application for an extension, I am satisfied that the Respondent has at the very least, a reasonable argument, that the amount claimed in the Bankruptcy Notice has not been discharged or released.
Another ground raised by the Applicant is that the Bankruptcy Notice did not give credit for surplus funds in the order of $3,861 (or possibly more if the moneys paid by the Applicant were applied against the 2022/3 Judgment Debt), leading to an overstatement in the Bankruptcy Notice. In the absence of a notice of overstatement having been given under s 41(5) of the Bankruptcy Act, it is unlikely that a failure to give credit, and hence overstatement in the Bankruptcy Notice, invalidated that notice.[106]
[106] Compare Hudson Jr v Donald [1997] FCA 852; affirmed on appeal in Hudson v Donald [1998] FCA 227.
The real purpose of the application for review would appear to be to overturn the Registrar’s finding that the 2022/3 Judgment Debts had been repaid. Whether this purpose can be achieved requires consideration of the nature of a review of a registrar’s exercise of delegated power.
In Bechara, Allsop CJ explained that upon setting aside a sequestration order made in the exercise of delegate power by a Registrar, the Registrar’s order had no continuing effect, so that there was no bankruptcy to annul after the order was set aside:[107]
In any event, if one focuses on the application for review, as the Court has stated and as, correctly with respect, was stated by Lander J in Pattison 155 FCR at 251–252 [155]–[156] an application for review (under s 104(2) of the FCCA Act or s 35A(5) of the FCA Act) is an entirely different procedure to an application to set aside the existing order made in the absence of the party or for some other reason or to an application for an annulment. The review application is the rehearing of the petition to determine whether or not a sequestration order should be made by the Court (through the judge) on the evidence then available. If the answer be ‘no’, the first order to be made is to dismiss the petition. It would be fundamentally inconsistent with the dismissal of the petition to annul the bankruptcy. I agree with Colvin J that within the framework of the Bankruptcy Act and the validity of the delegation of power, the order made by the registrar can have no continuing effect. At one level of abstraction the registrar’s order (unless set aside for some reason, such as absence of the debtor or non-service or some other vitiating reason) spoke as an order of the Court. The validity of the delegation in the statute means that the registrar’s order was, and took effect as, an exercise of judicial power. Upon dismissal of the creditor’s petition on review the bankruptcy that the making of the sequestration order by the registrar created and the statutory consequences that flowed therefrom, such as vesting of property and the trustee taking up office, are brought to an end by the superseding dismissal of the petition: There is no bankruptcy to be annulled. That superseding can be seen as the merging or substitution of the order made by the registrar and of its continuing effect in or by the order made by the judge. Neither the bankruptcy nor the sequestration order can continue to have any effect.
What of the interim period between registrar’s order and judge’s order? An otherwise valid order of the Court burdened by an inhering right of the party to seek review and rehearing engaged the operation of the Bankruptcy Act, including the change of status of the debtor to bankrupt. Rights in and to property changed: s 58(1). The trustee took up office and began to act.
For the reasons expressed by Colvin J, the terms of s 104(3) (and s 35A(6)) should be construed as ample and sufficient to untangle and unravel as far as possible, and to the extent that it is just, the rights and positions of the parties involved. The “matter with respect to which the power was exercised” is the width of the controversy which by the time of the rehearing involves not merely the parties to the creditor’s petition but also potentially others, in particular the trustee, who have a proper interest in the consequences of the rehearing.
(Emphasis added)
[107] At [21] to [23].
In Totev v Sfar,[108] Emmett J held that a review entailed “a complete rehearing of the facts and the law as they exist when the judge reviews the order made by the registrar”.
[108] (2008) 167 FCR 193 at [10].
Having regard to these authorities it appears to me that on a successful review, either by virtue of the rehearing (following an extension of time), or as a consequences of orders available to the court on review which might include the making of a declaration, the findings made by the Registrar, and the Issue Estoppel, are capable of being overcome.
I shall proceed on the basis that:
(a)the Respondent has at least an arguable case that the Bankruptcy Notice had attached to it the 2022/3 Orders and was otherwise valid;
(b)the Respondent has at least an arguable case that the amount claimed in the Bankruptcy Notice in respect of the 2022/3 Judgment Debts was not repaid or discharged;
(c)the Respondent has at least an arguable case that the possible failure by the Respondent to give credit for surplus moneys paid by the Applicant in the Bankruptcy Notice did not render the notice invalid;
(d)the Issue Estoppel found by Magistrate TW Greenway means that the merit of the underlying application is a matter that is favourable to the grant of an extension of time, even if the Extension and Review Application is otherwise moot; and
(e)the merits of the Application (or more particularly, the merit of the Respondent’s opposition to that Application) are a factor in favour of the Respondent.
While, I have said that the respondent has “at least an arguable case” in respect of (a) to (c), on the evidence before me there is considerable merit in the Respondent’s contentions about those matters. But, as I have indicated, I do not need to resolve those questions for the purpose of this application for an extension.[109]
[109] Tu’uta Katoa at [65].
Nevertheless, having regard to all of the considerations that I have set out above, I am not satisfied that it is appropriate to extend the 21 day period provided for in r 2.02(3) of the Bankruptcy Rules. In reaching that conclusion, I give significant weight to the delay by the Respondent in seeking to review the Registrar’s Decision and the lack of a satisfactory explanation for that delay. The circumstances called for a cogent explanation. I also take into account the fact that the act of bankruptcy that would have occurred if the Bankruptcy Notice had not been set aside, is now stale, and to some extent the Application lacks utility.
I do not overlook the dilemma that the Respondent faces (which he characterises as an “injustice” in respect of a “sizeable sum of money”) in pursuing his claim for recovery of amounts that he claims are owing under the 2022/3 Judgment Debts. It may be that my determination means that all or a significant part of the balance that the Respondent claims is outstanding is irrecoverable, either as a matter of law or as a matter of practical reality.
CONCLUSION
In the premises, the Respondent’s Extension and Review Application must be dismissed. I refused to extend the time provided for by r 2.02(3) of the Bankruptcy Rules.
Costs
I shall hear the parties on the question of costs.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Fary. Associate:
Dated: 25 September 2025
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