Pelechowski, in the matter of Pelechowski v NSW Land and Housing Commission

[2000] FCA 299

FEDERAL COURT OF AUSTRALIA

Pelechowski, in the matter of Pelechowski v NSW Land & Housing Commission
[2000] FCA 299

IN THE MATTER OF KARL PELECHOWSKI
KARL PELECHOWSKI v NSW LAND AND HOUSING COMMISSION & ANOR
NI 2875 of 1995

MADGWICK J
8 MARCH 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2875 of 1995

IN THE MATTER OF KARL PELECHOWSKI

BETWEEN:	KARL PELECHOWSKI APPLICANT
AND:	NSW LAND AND HOUSING COMMISSION FIRST RESPONDENT
AND:	PUBLIC SERVICE ASSOCIATION OF NSW SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	8 MARCH 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application is dismissed.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NI 2875 of 1995

IN THE MATTER OF KARL PELECHOWSKI

BETWEEN:	KARL PELECHOWSKI APPLICANT
AND:	NSW LAND AND HOUSING COMMISSION FIRST RESPONDENT
AND:	PUBLIC SERVICE ASSOCIATION OF NSW SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	8 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this matter, on 17 February 2000, it appeared that the applicant, Mr Pelechowski had been made bankrupt. The representative of the Official Trustee was present and it was agreed that Mr Pelechowski had not filed his Statement of Affairs. The Official Trustee very reasonably took the view that this was an embarrassment to the exercise of the election whether to prosecute or discontinue these proceedings contemplated by s 60(2) of the Bankruptcy Act 1966 (Cth) (“the Act”). The 28 day period limited for such election by s 60(3) had expired.

2. After discussion and decision as to the nature of the proceedings and whether they could continue in the bankrupt's own name (I held that they could not), I ordered that the applicant file and serve on the Official Trustee on that day, 17 February, the Statement of Affairs as required under the Act and, conditionally upon compliance with that order, I ordered the time be extended for the Trustee to make his election for 14 days which would have brought the date for election to 2 March 2000. The matter was further listed for directions today for the orderly disposition of the proceedings.

3. Mr Pelechowski has not appeared today and has not communicated with the Court, as far as I am aware.  Despite his having claimed to an officer of the Official Trustee that he had completed the Statement of Affairs, although late, it has still not been received by the Official Trustee, either formally or informally. 

4. In the circumstances, the consequences are that the time was not extended and accordingly, pursuant to s 60(3), these proceedings are deemed to have been abandoned by the Trustee.  The appropriate order is that the application be dismissed.  I decline to make an order for costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             8 March 2000

Counsel for the Respondent:	R Goot
Solicitor for the Respondent:	Toomey Pegg Drevikovsky
Solicitor for the Official Trustee:	M McNally of Lobban McNally & Harney
Date of Hearing:	8 March 2000
Date of Judgment:	8 March 2000