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

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

CaseChat Overview and Summary

This case concerns an application by Raymond Elliott, a debtor, to review a decision made by Deputy Registrar Allen regarding the extension of time to comply with a bankruptcy notice. The application was made in the Federal Court of Australia, General Division, Bankruptcy District of the State of Queensland. The court was tasked with determining whether the time for compliance with the bankruptcy notice should be extended, given the circumstances surrounding the case.

The primary legal issue before the court was whether the time for compliance with the bankruptcy notice should be extended in light of the fact that the judgment which served as the basis for the bankruptcy notice had been set aside by the Magistrates Court. The court had to consider whether the decision of the Deputy Registrar, made without the benefit of this information, was reasonable and whether the extension of time was justified under the circumstances.

The court, in its judgment, acknowledged that the decision of the Deputy Registrar appeared reasonable based on the information available at the time. However, the court noted that there had been a breakdown in communication between the registry and the applicant's solicitors, leading to the applicant's unawareness that the application would be determined by the Deputy Registrar. Furthermore, the court was informed that the Magistrates Court judgment, which was the basis for the bankruptcy notice, had been set aside on 10 April 1992, a fact unknown to the Deputy Registrar at the time of his decision. Given these circumstances, the court decided that it was appropriate to extend the time for compliance with the bankruptcy notice to include 24 April 1992. This extension was intended to prevent any potential proceedings by other creditors based on an alleged non-compliance with the now set aside bankruptcy notice.

The court ordered that the time for compliance with the bankruptcy notice be extended up to and including 24 April 1992, thereby providing the debtor with a clear and definitive timeline to avoid any further legal complications arising from the set aside judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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