| IN THE FEDERAL COURT | OF AUSTRALIA ) |
)
| NEW SOUTH WALES DISTRICT REGISTRY | ) Nos. P1666 of 1987
) |
| DIVISION | GENERAL | ) |
| |
| EX PARTE: AGC (ADVANCES)LIMITED |
EX-TEMPORE REASONS FOR JUDGMENT
BURCHETT J.
| In | this matter an authority | under | 6.188 of | the |
| Bankruptcy Act (1966) was | signed by | the debtor on 14 September |
1987, but was not then consented to by Mr Staff, the controlling
| trustee named | in it. | He delayed dealing with | it because the |
| debtor failed to provide for | his fees. | These having been paid, |
| on 14 December | 1987 he signed a | consent to exercise the powers |
conferred by the authority.
A meeting of creditors of the debtor was thereupon
| called, and called duly | so far as all formalities are concerned |
| apart from the fact that the | 20 days period specified in s,194(1) |
| fixed by s.194(1). |
| had,already expired, together with a meeting of creditors of | the |
| debtor's | husband, and a meeting of their joint creditors. At the |
| meeting, a composition was approved which involves the | payment by |
| a business as.sociate of the debtor's | husband to the trustee of |
| the sum of $50,000. | The trustee | now asks me to extend the time |
In Re Gowing; ex parte Deputy Registrar in Bankruptcy
(1985) 11 FCR 111, followed in Re Ringuet ex parte Knight (1986)
11 FCR 45, the power of the court to extend this time, even after
| its expiry, was affirmed. The question is how | I should exercise |
my discretion. For the trustee, it is put that the problem
arises from a pure oversight, since the authority (not being in
effect - see section 188(2) - before the trustee consented to it)
could have been re-executed in December, and no-one could have
complained. That this is true was not contested. The opposing
| creditor, AGC (Advances) Limited, relied on the terms of | s.194, |
| and on certain alleged problems | in connection with the acceptance |
by the meeting of the compromise upon which it resolved.
| Although the creditor had filed | a cross-application, I |
| was | told | at the | b ginning | of | the aring | that | i s |
cross-application was based only on the non-compliance with the
| time fixed by section | 194. | In those circumstances, the applicant |
had no proper notice of the matters now sought to be relied on in
| argument. | In any case, I am not satisfied anything has been |
| shown which should deny the applicant the relief which I | would |
| otherwise grant in this situation. |
| I think I should exercise my discretion in favour of the |
| applicant trustee. | I extend the time to and including the date |
| of the meeting. |
It seems to me the circumstances are very special. The
| creditor asks for an order for | its costs on the basis that an |
| indulgence | was | sought | by | the | trustee. | It | was | accepted | in |
argument that the consequences of that would be to diminish the
| fund available to the general body of creditors, who have in | no |
way contributed to the problem, and can only in a very indirect
| sense be said to be seeking an indulgence. The basis on which | I |
1
| have made the order extending time | is itself rather special, and | -.r |
| was made quite clear | by the | affidavits which were filed in | c. | .. |
| support of the application. | In | all the circumstances, | I | think | .< | . |
| the proper order | is that there be no order | as to the costs of | any |
| I certify | that this and the |
preceding two ( 2 ) pages are a
true copy of the Reasons for
Judgment herein of his Honour
Justice Burchett.
Associate
| Solicitor for the Debtor: | Mr J.P. Pope |
| Counsel for the Creditor: | Mr P.H. Blackburn-Hart |
| Solicitors for the Creditor: | Messrs Clayton Utz |
| Counsel for the Trustee: | Mr J.K. Chippindall |
| Date of | hearing: | 31 May 1988 |