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Re Baker; Ex parte Baker v Staples

Re Baker; Ex parte Baker v Staples

Case [1995] FCA 703 4 September 1995

Bankruptcy Act 1966 s 41(6A)

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CATCHWORDS

BANKRUPTCY - application to extend time for compliance with bankruptcy notice - arguable case - whether Court must consider prospects of success - discretion of Court - contribution by co-surety

Bankruptcy Act 1966 s 41(6A),(6B),(6C)

Re Bryant ex parte Bryant v Commonwealth Bank of Australia (unreported decision of Hill J Federal Court of Australia 4 May 1994) Refd
Re Bryant v Commonwealth Bank of Australia (unreported decision of Full Court 9 November 1994) Cons
Re Lentini ex parte Lentini v CSR (1991) 29 FCR 363 Refd
Re Taylor ex parte Deputy Commissioner (1983) 74 FLR 377 Cons
Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 Refd
Adamopoulos & Anor v Olympic Airways SA & Anor (1990) 95 ALR 525 Refd
Re Dowson ex parte The Abovenamed v Kaku (unreported decision of Kiefel J Federal Court of Australia 1 September 1995) Refd
Monk v Smith (1893) 14 NSWR (Eq) 311 Refd
Mahoney v McManus (1981) 180 CLR 370 Refd

Re Noela May Baker ex parte The Abovenamed v Douglas Reginald Staples
Re Peter James Baker ex parte The Abovenamed v Douglas Reginald Staples
No QN 613 of 1995
No QN 614 of 1995

Kiefel J Brisbane 4 September 1995

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 613 of 1995

RE:NOELA MAY BAKER

EX PARTE:THE ABOVENAMED

Applicant

AND:DOUGLAS REGINALD STAPLES

Respondent

JUDGE MAKING ORDER: Kiefel J.

DATE OF ORDER: 4 September 1995
WHERE MADE: Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The time for compliance with the bankruptcy notice be extended until the determination of the appeal.

The judgment creditor pay the costs of and incidental to this application.

NOTE:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 614 of 1995

RE:PETER JAMES BAKER

EX PARTE:THE ABOVENAMED

Applicant

AND:DOUGLAS REGINALD STAPLES

Respondent

JUDGE MAKING ORDER: Kiefel J.

DATE OF ORDER: 4 September 1995
WHERE MADE: Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

The time for compliance with the bankruptcy notice be extended until the determination of the appeal.

The judgment creditor pay the costs of and incidental to this application.

NOTE:Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 613 of 1995

RE:NOELA MAY BAKER

EX PARTE:THE ABOVENAMED

Applicant

AND:DOUGLAS REGINALD STAPLES

Respondent

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT
OF THE STATE OF QUEENSLAND No. QN 614 of 1995

RE:PETER JAMES BAKER

EX PARTE:THE ABOVENAMED

Applicant

AND:DOUGLAS REGINALD STAPLES

Respondent

CORAM:  Kiefel J.
DATE:  4 September 1995
PLACE:  Brisbane

REASONS FOR JUDGMENT

The judgment debtors, Mr and Mrs Baker, apply pursuant to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Baker; Ex parte Baker v Staples

Details

AGLC: Re Baker; Ex parte Baker v Staples [1995] FCA 703
Case: [1995] FCA 703
Decision Date: 4 SEPTEMBER 1995

CaseChat Overview and Summary

The Federal Court of Australia heard applications from Noela May Baker and Peter James Baker, collectively referred to as the Bakers, to extend the time for compliance with bankruptcy notices issued against them by Douglas Reginald Staples. The Bakers sought relief under section 41(6A) of the Bankruptcy Act 1966, as they had filed an appeal against judgments entered in their favour in the District Court of Queensland. The appeal, which was instituted and prosecuted with due diligence, pertains to the validity and amount of the debts for which the bankruptcy notices were issued.

The central legal issue before the court was whether the presence of a bona fide and arguable appeal against the District Court judgments was sufficient to warrant an extension of time for compliance with the bankruptcy notices, without requiring the court to assess the merits of the appeal. The court also needed to determine if the prospects of success of the appeal played a role in deciding the extension of time under section 41(6A).

Justice Kiefel held that the discretion under section 41(6A) of the Bankruptcy Act allows for extensions when an appeal against the underlying judgment is bona fide and arguable, regardless of its prospects of success. The court reasoned that it would be inappropriate to delve into the merits of the appeal when granting an extension, as doing so could undermine the purpose of the appeal process. The court emphasized that the primary consideration should be the existence of a genuine and arguable appeal, which was clearly established in this case. The decision referenced previous cases that supported the principle that a debtor should not be made bankrupt if there is a genuine dispute over the debt, and an appeal should be allowed to proceed to investigate such disputes. The court further noted that the appeal involved significant issues, including the actual contributor of the debt and potential breaches of co-surety obligations, which had more than slight prospects of success.

In conclusion, Justice Kiefel ordered that the time for compliance with the bankruptcy notices be extended until the determination of the appeal, and that the judgment creditor, Douglas Reginald Staples, pay the costs of and incidental to the applications. This decision underscores the importance of allowing debtors to challenge the validity of debts through the appeal process before being subjected to the consequences of bankruptcy.

Orders