Re De Vere, Gary Raymond Ex Parte De Vere, Gary Raymond & Anor
[1995] FCA 1093
•15 Dec 1995
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QP 647 of 1995
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:GARY RAYMOND DE VERE
EX PARTE:GARY RAYMOND DE VERE
Applicant Debtor
AND: DEPUTY COMMISSIONER OF TAXATION
Respondent Creditor
MINUTES OF ORDER
JUDGE MAKING ORDER: Spender J
DATE OF ORDER: 15 December 1995
WHERE MADE: Brisbane
THE COURT ORDERS THAT:
(1)The applications filed by the debtor on 3 November 1995 and 15 December 1995 are dismissed.
(2)The applicant pay the costs, of and incidental to the applications, of the Deputy Commissioner of Taxation, including any reserved costs, to be taxed if not agreed.
(3)By consent, service of Petition No. 647 of 1995 on Gary Raymond de Vere at Post Office Box 487, Fortitude Valley, be deemed to be good service pursuant to the Bankruptcy Act 1966.
NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
GENERAL DIVISION )
No. QP 647 of 1995
BANKRUPTCY DISTRICT OF THE )
STATE OF QUEENSLAND )
RE:GARY RAYMOND DE VERE
EX PARTE:GARY RAYMOND DE VERE
Applicant Debtor
AND: DEPUTY COMMISSIONER OF
TAXATION
Respondent Creditor
CORAM: Spender J
DATE: 15 December 1995
PLACE: Brisbane
REASONS FOR JUDGMENT
This is an application filed on 3 November 1995 by Mr Gary Raymond de Vere which seeks orders that the bankruptcy notice issued against the applicant by the respondent, dated 11 August 1995, be set aside.
There is a further application filed today by leave where Mr de Vere seeks an order that the time for filing the application to set aside the bankruptcy notice be extended until 3 November 1995.
There are two aspects of the material filed by Mr de Vere on 3 November. The first of them is whether there was a s 41(7) affidavit filed in time. If there was, the effect of such filing is, by virtue of the provisions of the Bankruptcy Act 1966 ('the Act'), and not by any court order, to extend the time for compliance until the court determines whether or not it is satisfied of that counter-claim, set-off, or cross demand.
The second aspect is whether the court should set aside the bankruptcy notice. Unfortunately for Mr de Vere, the chronology is such that neither of the orders that he seeks is open to him. Section 41(7) of the Act provides:
"Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has filed with the Registrar an affidavit to the effect that he has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied. "
As the first clause of that sub-section makes plain, the application has to be filed "before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice". The bankruptcy notice in the present case required compliance within 14 days from, and excluding, 4 October 1995. Therefore, what was filed on 3 November was not filed "before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice" and therefore s 41(7) does not apply.
Similarly, s 41(6A) provides:
"Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a bankruptcy notice:
(a)proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b)an application to set aside the bankruptcy notice has been filed with the Registrar;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice. "
It again requires certain things to have been done as a foundation of the court's jurisdiction to extend the time for compliance of a bankruptcy notice.
Proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued must have been instituted, or an application to set aside the bankruptcy notice must have been filed, before the expiration of the time fixed by the court or the Registrar for compliance with the requirements of the bankruptcy notice. Again, in this case, neither of those things was done within that time.
In the circumstances, there is no power to make either of the orders sought by the debtor. The general power conferred by s 33 of the Act to extend time does not permit any extension where the express requirements of the subsections are as I have indicated.
The applications filed by the debtor on 3 November 1995 and today are dismissed and I order that the applicant pay the costs, of and incidental to the applications, of the Deputy Commissioner of Taxation, including any reserved costs, to be taxed if not agreed.
I should indicate that my disposal of the matters concerning the bankruptcy notice does not prejudice anything that might validly be said concerning whether the petition can be successfully prosecuted. Much, of course, will depend on the status of the default judgment on which the bankruptcy notice and the petition is founded. I understand that the petition is set to be heard on 5 February 1996 and one would hope and anticipate that a resolution of the position in respect of the default judgment will have taken place by that date.
I order that by consent, pursuant to s 309, that service of petition No. 647 of 1995 on Gary Raymond de Vere at Post Office Box 487, Fortitude Valley, be deemed to be good service pursuant to the Act.
I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.
Associate
Date: 15 December 1995
Mr de Vere appeared in person.
Counsel for the Respondent Creditor: Mr P. Hack
Instructed by: Australian Government
Solicitor
Date of Hearing: 15 December 1995
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