Matthews v Collett

[2000] FCA 224

FEDERAL COURT OF AUSTRALIA

Matthews v Collett [2000] FCA 224

BANKRUPTCY – application retrospectively extend time after which creditor’s petition will lapse –appropriate circumstances for applying “the slip rule”

BANKRUPTCY - application to amend creditor’s petition to cure defective description of act of bankruptcy – whether defect in petition one of substance or form – whether amendment seeks to allege a different act of bankruptcy

Bankruptcy Act 1966 s 33(1)(b), 40(1)(d), s 52(5), s 306
Federal Court Rules s O 35 r 7

Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 Appl
Re Young; Ex parte Smith (1985) 5 FCR 204 Not foll
Re Agushi; Ex parte Farrow Mortgage Service Pty Ltd (in liq) (1994) 126 ALR 704 Foll
Re Howell; Ex parte Deputy Commissioner of Taxation (1996) 70 FCR 261 Appr
Komesaroff v Law Institute of Victoria [1997] FCA 965 Appr
Re Langridge; Ex parte BennettCarroll & Gibbons [1998] FCA 879 Appr
Re James Louis Florance; Ex parte Turimetta Properties Pty Ltd [1980] FCA 13 Cited
Re Frank Ballato; Ex parte Rocco Pezzano [1988] FCA 768 Appr
Ex parte Coats; Re Skelton (1877) 5 Ch D 979 Cons
Re Fiddian Squire & Co; Ex parte Fiddian, Squire & Co (1892) 9 Mor 95 Cons
In Re Hastings (A Bankrupt) (1985) 1 WLR 969 Appl
Bryant v Commonwealth Bank of Australia [1995] FCA 971 Cited
Re Paul Read; Ex parte Plumbers Supplies Co-operative Ltd [1995] FCA 335 Cited
Re A Debtor [1970] 1 All ER 920 Appr
Love v Pattison [1998] FCA 967 Cited
Ling v Enrobook Pty Ltd (1997) 74 FCR 19 Appr

BRYCE HADDY MATTHEWS AND BERNICE JEAN MATTHEWS v STANLEY WILLIAM COLLETT
QG 7524 OF 1998

SPENDER J
17 FEBRUARY 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7524 OF 1998

BETWEEN:

BRYCE HADDY MATTHEWS
First Applicant

BERNICE JEAN MATTHEWS
Second Applicant

AND:

STANLEY WILLIAM COLLETT
Respondent

JUDGE:

SPENDER

DATE OF ORDER:

17 FEBRUARY 2000

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The application for leave to amend the creditor’s petition be refused.

2.The application to extend the time after which the creditor’s petition will lapse be declined.

3.The applicants pay the respondent’s costs of and incidental to his defence to the petition, including reserved costs, but not including any costs subsequent to the filing of the respondent’s written submissions in relation to the amendment of the petition.

4.There otherwise be no order as to costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG7524 OF 1998

BETWEEN:

BRYCE HADDY MATTHEWS
First Applicant

BERNICE JEAN MATTHEWS
Second Applicant

AND:

STANLEY WILLIAM COLLETT
Respondent

JUDGE:	SPENDER
DATE:	17 FEBRUARY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. In this case a creditor's petition was presented on 21 December 1998. Section 52(5) of the Bankruptcy Act 1966 (“the Act”) provides:

   “That the Court may, at any time before the expiration of…