Re: Dittes, Ex Parte: Clyde Industries Limited

[1992] FCA 1085

1085       ?Z

JUDGMENT No. ......." ......., J ..,.,..,

IN THE FEDERAL COURT OF AUSTRALIA )

GENEIU& DIVISION	1
BANKRUPTCY DISTRICT OF THE	) NOS B 3066 h 3067 of 1991
1

Re: FRITZ CARL DITTES

DebtodApplicant

Ex Parte: CLYDE INDUSTRIES LIMTED

FEDERAL COURT

OF AUSTWaBblA Creditor/Respondent

Re: VICKIE DITTES

LIBFURY Debtor/Applicant

Ex Parte: CLYDE INDUSTRIES LIMTED

EX TEMPORE JUDGMENT

EINFELD J SYDNEY 16 SEPTEMBER 1992

The debtors apply to the Court for an extension of the time for compliance with a bankruptcy notice dated 12 August 1992. The cases are identical and were heard together. The bankruptcy notice is based upon a judgment of the Supreme Court of New South Wales, Commercial Division, in proceedings number 50038 of 1992 given on 19 June and entered on 22 July

be available for at least another 12 months.

1992. That judgment has been appealed to the Court of Appeal

in matter number 40390 of 1992 and the application seeks extension of the bankruptcy notice to a period of 21 days after the judgment of the Court of Appeal is pronounced or such other time as this Court thinks appropriate. As the judgment is recent, I am informed that a judgment of the Court of Appeal, short of any order for expedition, is unlikely to

The application for extension of time is based upon the provisions of section 41(6A). This and the immediately following subsections were inserted into the Bankruptcy Act by Act No. 12 of 1980. The application is opposed on the grounds that the provisions of paragraph (a) of subsection (6A) do not envisage an appeal from the judgment on which the bankruptcy notice was based - in other words, that an appeal from a judgment debt does not constitute or is not constituted by proceedings to set aside the judgment.

In the circumstances to which I will refer when the judgment in this matter is ultimately delivered, that construction of the statutory provision is argued to be incorrect. Unless it is, the current application could not succeed. Hence the debtors have sought an amendment to the application to add a request for an order that the bankruptcy notice be set aside and for that application as well to be adjourned until after the judgment of the Court of Appeal. The purpose of the amendment is to open up the availability to the debtors of the provisions of paragraph (b) of subsection (6A) which it is not

disputed would give the Court power to extend the time for	compliance.
Nothing of substance was put as to why the amendment should not be allowed and certainly no prejudice was argued other than as to costs which can be dealt with at a later time. Accordingly, subject to a proper amended application being filed, I shall allow the amendment.
The question of whether an appeal from a judgment debt is envisaged by section 41(6A)(a) has been fully and competently argued by counsel on both sides. It seems to me desirable and necessary to give consideration to it rather than attempt to rush through an ex tempore judgment on a matter of some importance to both parties. Hence the amended application will be adjourned and the time for compliance with the bankruptcy notice will be extended until such time as I am able to deliver judgment in the primary application argued today. I take this step because I am informed by counsel that there are only two days left before the time for compliance will otherwise expire.
The orders I make today are:
1. Subject to the filing of an appropriate amended application the application may be amended to add a request for orders that the bankruptcy notice be set aside and adjourned until after the Court of Appeal's

judgment.

2.    Judgment on the issue of whether time for compliance with the bankruptcy notice can and should be extended will be reserved. The time for compliance with the bankruptcy notice is extended up to 14 days after the delivery of

the judgment in this matter. AU"AU"AU".AU"AU"AU"AU"

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