Lopez, Conchita v Sarid Nominees Pty Ltd

[1997] FCA 973

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - PRACTICE AND PROCEDURE - EXTENSION OF TIME to file review of Registrar’s decision - whether service effected in accordance with Court’s rules - whether reasons for failing to comply with time to lodge review - whether significant prejudice to a party if application granted -

Bankruptcy Act 1966 (Cth)            
Bankruptcy Rules       O 77 r 8
Federal Court Rules             O 3   r 1

LOPEZ  -V-  SARID NOMINEES
VG 7385 of 1997

PARKINSON JR
MELBOURNE
17  SEPTEMBER  1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG  7385  of   1997

BETWEEN:	CONCHITA LOPEZ Applicant
AND:	SARID NOMINEES PTY LTD Respondent
JUDICIAL REGISTRAR:		PARKINSON
DATE OF ORDER:		17 SEPTEMBER 1997
WHERE MADE:		MELBOURNE

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The application 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
VICTORIA DISTRICT REGISTRY	VG  7385  of 1997

BETWEEN:	CONCHITA LOPEZ Applicant
AND:	SARID NOMINEES PTY LTD Respondent
JUDICIAL REGISTRAR:	PARKINSON
DATE:	17 SEPTEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

This is an application made for an extension of time for filing a review of a decision of a Registrar to make a sequestration order.  The decision in question and consequent order was made by the Registrar on 20 November 1990.  At the hearing I dismissed the application and reserved full reasons which I now publish. 

I am treating the application as an application made pursuant to O 3 r 1 of the Federal Court Rules for the extension of time for the filing of a review against a decision of a Registrar.  The time for filing such a review, provided for by the Bankruptcy Rules in O 77 r 8, is 21 days after the order is made.  The applicant appeared with leave by a friend, Ms. Goodman.  There was no appearance for the respondent.  Nor was there an appearance for the Official Trustee.  No affidavit material as to service was provided to the Court.  The state of the material was such that I could not be satisfied that service of the application, including the affidavit material to be relied upon, had been effected on the respondent or the Official Trustee, as ordered by the Registrar at the last hearing of this matter.

Further, neither the affidavit material of the applicant sworn on 16 June, 1997 and filed with the application, nor the additional material tendered at hearing, provided sufficient basis to satisfy me that there was a sound basis for an extension of time being granted.  The applicant’s affidavit did not address the basis for the application, that is the reasons for the failure to comply with the time for filing a review.  No satisfactory explanation was given for the period of time which has been allowed to elapse between the making of the order by the Registrar on 20 November, 1990 and the filing of the application in this Court on 16 June, 1997.  Whilst I accept that the applicant may have been under a misapprehension as to the appropriate forum and initially proceeded in the Administrative Appeals Tribunal, even this does not explain the length of time involved between the making of the order by the Registrar in November 1990 and the bringing of the present proceedings.  The applicant did not take any steps in relation to the decision of the Registrar until 4 April, 1997. 

An application for extension of time requires a consideration of  the competing factors, including the prejudice to the parties by a granting of the extension of time, not only a consideration of the merit or otherwise of the application in respect of which an extension of time is sought.  Without having heard from the respondent, it is apparent that the history of this matter and the steps which have already been taken by the respondent, together with the time lapse which has occurred, identifies significant prejudice to the respondent if the application were granted.  The applicant’s late realisation that it was open to her to make application on her own behalf in the Court is not a sufficient basis for the granting of the application for extension of time. 

For the reasons set out herein I dismiss the application. 

I certify that this and the preceding one (1) page is a true copy of the Reasons for Judgment herein of the Judicial Registrar Parkinson

Associate:

Dated:           17 September 1997

APPEARANCES

The Applicant in person assisted by Ms. E. Goodman
No appearance for the Respondent
Date of Hearing:	15  September  1997
Date of Judgment:	17  September  1997