FAMILY COURT OF AUSTRALIA
| PANWAR & PANWAR AND ANOR | [2020] FamCA 480 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Application for extension of time – to bring s 79 proceeding – informal property settlement undertaken in 2015 – husband declared bankrupt – trustee pursuing wife for amounts allegedly owing under s 120 and 121 of the Bankruptcy Act – relevant criteria for grant of extension of time – extensive review of unsettled authorities – leave granted. FAMILY LAW – BANKRUPTCY – whether trustee’s application for relief should be permitted to go forward yet wife’s s 79 application not so permitted – relevance of that consideration to the grant of leave – leave granted. |
| Bankruptcy Act 1966 (Cth) ss 30, 58, 120, 121 Family Law Act 1975 (Cth) ss 44(3), 44(4), 75(2), 79 Matrimonial Causes Act 1959 (Cth) |
| Adair v Milford [2015] FamCAFC 29 Anscor Pty Ltd v Clout (2004) 135 FCR 469 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Board of Trade v Cayzer, Irvine & Co Ltd [1927] AC 610 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Cholmondeley v Clinton [1820] 37 ER 527 Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Gallo v Dawson (1990) 64 ALJR 458 Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 In the Marriage of Althaus (1979) 8 Fam LR 169 In the Marriage of Biltoft (1995) 19 Fam LR 82 In the Marriage of Carlon (1982) 8 Fam LR 729 In the Marriage of Frost & Nicholson (1981) 7 Fam LN N9 In the Marriage of Hall (1979) 5 Fam LR 411 In the Marriage of Howard (1979) 8 Fam LR 178 In the Marriage of Kercher (1981) 7 Fam LR 216 In the Marriage of Leibinger (1985) 11 Fam LR 33 In the Marriage of McDonald (1977) 31 FLR 426 In the Marriage of Perkins (1979) 4 Fam LR 634 In the Marriage of Petersens (1981) 7 Fam LR 402 In the Marriage of Prince (1984) 9 Fam LR 481 In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener) (1989) 96 FLR 449 In the Marriage of Swallow (16 September 1977) In the Marriage of Walker (1984) 9 Fam LR 983 In the Marriage of Whitford (1979) 4 Fam LR 754 In the Marriage of Woodland & Todd (2005) 33 Fam LR 179 Johnson v Johnson (1999) 26 Fam LR 475 Jones v Bellgrove Properties Ltd [1949] 2 KB 700 Lagioia & Rapino [2020] FamCA 11 MacKenzie v MacKenzie (1978) 4 Fam LR 374 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Official Trustee in Bankruptcy v Lopatinsky (2003) 30 Fam LR 499 Owen v De Beauvoir [1847] 153 ER 1307 Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Lawrence [1982] AC 510 Re Chemaisse… |
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- AGLC
- Panwar and Panwar & Anor [2020] FamCA 480
- Case
- [2020] FamCA 480
- Decision Date
CaseChat Overview and Summary
The primary legal issue before Justice Wilson was whether to grant the wife leave to extend the time for commencing her section 79 application. This required the court to consider the relevant criteria for granting such an extension, particularly in light of the trustee's actions and the wife's application. A further consideration was the potential disparity in allowing the trustee's application to proceed while the wife's section 79 application was not yet permitted.
Justice Wilson granted the application, extending the date for commencing the proceeding to 20 December 2019. The court undertook an extensive review of unsettled authorities concerning extensions of time in such circumstances. The reasoning appears to have involved balancing the interests of the parties, including the trustee's pursuit of alleged debts and the wife's right to seek a property settlement, within the framework of the *Family Law Act* and the *Bankruptcy Act*. The court ordered that the parties were to bring in minutes for ongoing case management by 4pm on 25 June 2020, acknowledging the case was now in the judge's docket.
Orders
Orders of the court
1.
The applicant’s application filed 20 December 2019 for an order pursuant to s 44(3) of the Family Law Act is granted.
2.
I extend the date for commencing this proceeding to 20 December 2019.
3.
On or before 4pm on 25 June 2020 the parties must bring in minutes that provide for ongoing case management having regard to the fact that this case is now in my docket.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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