Re Elliott, R. Ex Parte Elliott, R. v G E Crane & Sons Ltd

[1992] FCA 242

242 1 91

JUDGMENT No. ........ ...... .. .... ........ -..

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

RE: RAYMOND ELLIOTT

Debtor

EX PARTE: RAYMOND ELLIOTT

AND: G.E. CRANE & SONS LIMITED tradina as GLITHEROE PLUMBING AND BATHROOM CENTRE

MINUTES OF ORDER

JUDGE MAKING ORDER:	Cooper J
DATE OF ORDER:	24 April, 1992
WHERE MADE:	Brisbane
THE COURT ORDERS THAT:

1.        That the time for compliance with the bankruptcy notice be extended up to and including 24 April, 1992.

REGISTRY

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

7 MAY 1992

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT

OF THE STATE OF OUEENSLAND

No OB480 of 1992

RE: RAYMOND ELLIOTT

Debtor

EX PARTE: RAYMOND ELLIOTT

ADDlicant

AND: G.E. CRANE & SONS LIMITED tradinu as GLITHEROE PLUMBING AND BATHROOM CENTRE

CORAM:	Cooper J
DATE :	24 April, 1992
PLACE :	Brisbane

EX TEMPORE REASONS FOR JUDGMENT

This is an application by Raymond Elliot pursuant to
section 14(5) of the Bankru~tcv Act to review a decision of

Deputy Registrar Allen made on 13 April 1992. On that date

the Deputy Registrar considered an application filed on 10

April 1992 to extend the time for compliance with a bankruptcy notice served on 30 March 1992. At the time the matter was considered by Deputy Registrar Allen, he had before him a pro forma affidavit but no affidavit of merits.

From the material and from what I have been advised from the bar table, there appears to have been some breakdown in communication between the registry and the applicant's solicitors as to what was to occur on 13 April 1992, and the applicant, on the material, was unaware that the application was to be determined by the Registrar on that occasion and did not seek to supplement the material presently on the file.

Unbeknown to the Deputy Registrar, on 10 April 1992 the Magistrates Court judgment in respect of which the bankruptcy notice was served was set aside in the Magistrates Court. Accordingly, the judgment underpinning the bankruptcy notice was, on 13 April 1992, no longer in existence. Today, before the Registrar, the petitioning creditor has agreed to a consent order setting aside service of the bankruptcy notice.

Viewing the decision of Deputy Registrar Allen on the material before him and in the absence of supplementary material, or knowledge that the judgment had been set aside, his decision seems eminently reasonable. However, I am satisfied that I may have regard to circumstances not known to the Registrar or Deputy Registrar at that time in considering

whether or not I ought to extend the time.

Having regard to the fact that the judgment has been set aside, and that a consent order has been made setting aside service of the bankruptcy notice, I consider that in all the circumstances the time for compliance with that bankruptcy notice ought to be extended to include the 24th day of April 1992 so that there can be no question that the applicant is exposed to any possible proceedings by any other creditor based upon an alleged non-compliance with the bankruptcy notice which has now been set aside.

Accordingly, I order that the time for compliance with the bankruptcy notice be extended up to and including 24 April 1992.

I certify that this and the two (2)

preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 24th April, 1992.

A M' U-.

Associate