McLean v ANZ Banking Group Ltd

[1993] FCA 284

Re: STEPHEN FRANK McLEAN
And: AUSTRALIAN AND NEW ZEALAND BANKING GROUP LIMITED and DAVID JOHN BEATTY
No. VP871 of 1992
FED No. 284
Number of pages - 7
Bankruptcy
(1993) 42 FCR 300

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
BANKRUPTCY DIVISION
Ryan J(1)

CATCHWORDS

Bankruptcy - Bankruptcy Notice - Power of the Court to extend time for compliance with the notice - effect of absence of application to set aside notice - purpose for which extension of time may be granted - exercise of discretion of the Court to extend the time for compliance on ground of abuse of process - alleged abuse of process occurring after the expiration of time for compliance fixed by bankruptcy notice.

Bankruptcy Amendment Act 1980

Bankruptcy Act 1966

Lipov v Alexander Fraser and Son Ltd and Anor (2978) 36 FLR 126

Re Lentini; Ex parte Lentini v CSR Limited (1991) 29 FCR 393

Re Sterling; Ex parte Esanda Ltd 44 FLR 125

Streimer v Tamas (1981) 37 ALR 211

HEARING

MELBOURNE

#DATE 6:5:1993

Counsel for the applicant: Mr P Ginnane

Solicitor for the applicant: R J Macnab and Associates

Counsel for the respondent: Mr D M Derham

Solicitor for the respondent: Blake Dawson Waldron

ORDER

THE COURT ORDERS:

1. That the application be dismissed.

2. That the applicant pay the costs of the respondents such costs to be taxed.
Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

RYAN J On 8 July 1992 a bankruptcy notice, No. OO2148 of 1992, was issued on the application of Australian and New Zealand Banking Group Limited and David John Beatty ("the creditors"), directed to the applicant Stephen Frank McLean ("the debtor"). The debt which formed the subject of the notice was described as:

"The sum of $43,341.10 and no more ... due by (the debtor) to (the creditors) under a final judgment obtained by them against (the debtor) in the Supreme Court of Victoria at Melbourne on the 23rd day of January 1992 being a judgment the execution of which has not been stayed and pursuant to which a taxation order was made on the 1st day of April 1992."

1. The notice was served upon the debtor on 16 July 1992 and stipulated a period for compliance of 14 days, expiring on 30 July 1992. On the final day for compliance, 30 July 1992, an application by the debtor was filed in the registry of this Court by which he sought the following orders:
   

"1. That the Bankruptcy Notice dated the 8th day of July 1992 and issued in these proceedings by the Judgment Creditor be set aside.

2. That further and in the alternative the time for compliance be extended by order of the Court."

1. An affidavit in support of the application sworn by the debtor on 30 July 1992 was also filed. No extension of time for compliance with the bankruptcy notice was granted in favour of the debtor upon the filing…