Re Gowing; Ex parte Deputy Registrar in Bankruptcy

[1985] FCA 288

.

CATCHNORDS

Bankruptcy - Part X arrangement - creditors' meeting held

F

outside time prescrlbed by s.l94(l)(a) - whether Registrar

has power to extend time after expiration of 28 day period.

Y m v. Smith, Full Federal Court, 4 April 1985 -

distinguished.

IN THE MATTER of an application by the Deputy Reglstrar in

Bankruptcy pursuant to rule 119 of

the Bankruptcy Rules in

Re Gowinq and Anor.

No. W271/84X

Beaumont, J.

21 June 1985.

Canberra

IN THE FEDERAL COURT OF AUSTRALIA ) l

) ( c 5861 lqr- ~ i

BANKRUPTCY DISTRICT OF THE STATE )

. I

) ,I

I'

a., , ,

OF NEW SClTTTH WALES AND THE )

. - ,'

)

AUSTEALIAN CAPITAL TERRITORY ) NO. W271184%

IN THE MF.TZP o f a n a p p l i c a t i o n b y the

Deputy Registrar i n E a n k r u p t c y p u r s u a n t

to r u l e 1 1 9 of the Bankrupccy Rules i n

Re Gowlnq and Anor.

KINUTEC OF GEPJER

,Tudqe mal.rlnc: o r d e r : Eeaumont, J .

Date o r d e r made: 2 1 J u n e 1985.

Wh-re made: Canber ra .

Ancwer r;he q u e s t l o n refert-rd as f o l l o w s :

c u e e t l o r . : Does the E v q l s t r a r have ~ o w e r t o e x t e n d tllr

time by w h c h the mee t ing of creditors shou ld kLave heen held

p u r s u a n t	to	5.194	of	t l l e A c t a f t e r	that	time	has	e x p l r e d ?
Anrjwer.:	Yes.

Note: S e t t l e m e n t a n d e n t r y of o r d e r s i s dea l t wlt l l I n

Order ? F o f t h e Federal C o u r t R u l e s .

IN THE	FEDERAL	COURT	OF AUSTRALB	1
1

BANRRUFTCY DISTRICT OF THE S T m ) )

OF NF[4 SOIJTH	WALES	AND THE	1
)

AUSTRI?LIAN CAPITAL TERRITORY ) No. W271/84X

I N THE MATTER of a n a p p l l c a t i o n b y the

D e p u t y E e g i s t r a r i n B a n k r u p t c y p u r s u a n t 1.0 r u l e 1 1 9 of the Bankrup tcy Ru les In

Re Gowinq and Anor-

cOF(AM:	Eeaumont . J .
DATED:	2 1 June 19R5.

.

The f a c t s of t h l s r e f e r e n c e a re that on 12 N o v ~ I T , ~ . I ~

19EiC. Mr. Donalrl Lancaster Gowlng and Mrs. Lyne t t e Wins tone

Coxins ( " the deb to r s " ) s l g n e d d n a u t h o r i t y p u r s u a n t t o 5.188

of the Eankruptcy A c t , 1966 ( "the Act"!. The a u t h o r i t y

empowered a s o l i c i t o r , Nr. L.M. D ? r w m , t o c a l l a meet ing o€

creditors of	the debt -ors f o r the purpose:	of	P a r t X of the
Ac t .

By s . 1 9 4 ( 1) of the Act , it is p rov ided that the

mee t lng of c r e d i t o r s t o be c a l l e d p u r s u a n c e i n of a n

a u t h o r l t y u n d e r s.1RR shall Le held:

2 .

" ( a ) not later than 28 days after the

authority is signed by the debtor ... ; and

(b) not earlier than 14 days after the

notices to credltors are dellvered	or sent
by post under sub-sectlon ( 2 ) . "

A meeting of the credltors of the debtors was not

held until 1 2 December 1984, i.e., 3 0 days after the qlvlng

of the authorlty. The meeting purported to resolv? to

accept a composition wltk the debtors and to nominate Mr.

L.J. Baker, a registered trustee, as trustee of the composltlon. Mr. Eaker has now souqht from the Heqistt-ar an

extcnslon of time within whlch to h o l d the meeting	of
creditor:.

The application for extension 1s brought pursuant

tJ s.33(Zj(C) of the Act. 50 far as relevant it Frovides:

"The Reulstrar may-

,,,

(c) extend kmefore Its explratlon o t , 15

this Act does not expressly provlde tu the

contrary, after Its expiration, any time

limited by this Act . . . "

It follows that the Reglstrar has power to grant

the extension sought except if 5.194 "expressly provide( s )

to the contrary".

3 .

"To be 'express provlslon' w ~ t h regard to somethinq

it is not necessary that that thing should be speclally

mentioned; it is sufflclent thal; It is dlrectly covered by

the language however broad that language may be whlch covers

it; so lcng a: the applicabllity ar1ses dlrectly from the

language used and not by inference therefrom" (per Lord

Hadcllffe In - Shanmuqaq v. Commlss~oner for Reslstratlon of

- Indian and Pakistanlxe~~dents C19621 A . C . 515 at p . 5 2 7 ) .

Thus, although express words are not required. the

qualiflcation to 5.33(2) (c) does require something that

lndlcates an express 1ntentlc.n that: its provisions shall not

apply t o the tlme limlt lald down by S. 1 9 4 f o r the holdinq

Qf the meeting PS creditors ( s e e Metropolitan Olstr1r.t

-- Flailway CO, v. .?harix (15EC) 50 L . J . C . B . 14 p 6 . Y Lord

Elacliburn a t p . 2 1 ) .

In my o p l n l w , there 1 s nothing In the languaqe of

5.194 or p i a edAere i n the Act x?ilch cou ld form a f zundatim

f o r a sugqestian that the general power t n exten3 tlme

contained In s.33(2)(c) is not avallsble for the purpcse of

extending the tlme f o r holdlng the meetlnu. All that

s . 1 9 4 ( 1 ) relevantly does is to flx a tlme llmlt f o r thi5

purpose: it is sllent on. the question whether any extension

of that limlt should be permitted. It follows, ~n ny vlew,

that the qualification in ~.33(2)'c) is not appllcable.

Although the question wa5 left open by a Full Court

4.

of this Court in Pretnrius v. Dalton Carpet Tlles Ptv.

Limlted (1984) 54 A.L.R. 743 at p.750; cf. G m ; Ex parte

Horshurqh (196.7) 10 F.L.R. 187), the recent declsion of a

Full Court of this Court in Young v. Smith (unreported, 4

April 1 9 8 5 ) may, I think, be dlstlnguished for present

purposes. It was there held that s.33(l)(c), a section

identical in Its terms to s.33(2)(c) but directed to the

Court rather than to the Registrar, does not empower the

Court to extend the period at tt,c expiration of whicPL a

credit~r'~ petltlon wlll lapse if the period of twelve

months commencing on the date of presentatlon of the

petltion ha5 exp1r-d before the Court is asked to make a?

order extendlrq the sal6 period. Eut thst wa5 a s p e c i a l

context: in It- reasons (at p.111, the Court emphasised the .

pollcy evidenced by the provlslons of s . 5 2 ( 4 ) and (5) whlch,

It held, wa5 inconsistent with the concurrent Ex15ience of a

genera l pow?r tcb extend time under a Tenera1 pKctvislnn :.~rll

as ~.53(i)(cI. In Its view:

"Faragraph 33(l)(c) is dlrected essentlaliy

to provislons in the Act requiring the

doing of certaln acts or thlnqs wLtliin

speclflc times. Many exampies may be

fmmd In the Act, but we refer to the

following as sufficlent examples f o r

present purposes: sub-5s. 54 ( 1) and (2) ,

5 6 ( 1 3 ) , 102(1), 104(3), 1 6 7 ( 6 ) afld (7),

188(4) and 203(1), ( 3 ) and ( 4 ) . "

In the present case, there are no speclal context

5 .

and no special policy consideratlons of the klnd present In

-1v. Smith, supra. Moreover, there is no provision such

as s . 5 2 ( 4 ) or (5) from whlch it is possible to spell out a

leqlslative intention neqativlnq the power to extend time

found in v. Smith, supra; s.194(4) is dlrected only at

a departure from the provisions of s.194(2) and ( 3 ) . In

short, 5 . 1 9 4	has nothing to say on the qurstlon	whlch now
at-lses.

Whether the discretion to extend tlme should be

exercised in the present	ype of case is. of course, another
matter .

I answer the question referred to a5 follows:

S . 3 3 ( 2 ) ( L uf the Act doe: empwe:: the Registrar to extend

the t h e by which the Inectlnq of credltors should have been

held pur:;umt to 5 . 1 9 4 of the Act after that tlme has

expired.

Mr Justice

Associate

i