Re Madrers, P.R.; Ex Parte HongKong Bank of Australia Ltd; Madrers, P.R. v HongKong Bank of Australia

[1992] FCA 348

IN THE FEDERAL COURT OF AUSTRALIA	1	NO. QN 3 of 1992
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF	1
THE STATE OF OUEENSLAND	1

RE:  PETER ROBERT MADRERS and
KEVIN JAMES CROSS

EX PARTE: HONGKONG BANK OF AUSTRALIA LIMITED

PETER ROBERT HADRERS

Applicant

AND :  HONGKONG BANK OF AUSTRALIA LIMITED

Respondent

MINUTES ORDER

JUDGE MAKING ORDER:	Drummond
DATE OF ORDER:	25 May, 1
WHERE MADE:	Brisbane

,

THE COURT ORDERS THAT:

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

,

1.        The application filed 15 May, 1992 is dismissed.

1. The applicant pay the respondent's costs of today's proceedings.

2. The costs of today's proceedings be costs in the bankruptcy that may ensue.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QN 3 of 1992
GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF	1
THE STATE OF OUEENSLAND	1

RE :  PETER ROBERT MADRERS and
KEVIN JAMES CROSS

EX PARTE: HONGKONG BANK OF AUSTRALIA LIMITED

PETER ROBERT MADRERS

Applicant

AND:  HONGKONG BANK OF AUSTRALIA LIMITED

Respondent

CORAM: Drummond J

PLACE: Brisbane

DATE:	25 May,	1992
EX TEMPORE REASONS FOR JUDGMENT

A preliminary objection has been) raised by the

respondent to the application, that the court has no power to

order for which provides that service shall be deemed to have	extend the time for compliance with a bankruptcy notice. The notice was served by substituted service, the
been effected on 1 6 April, 1992. The notice required payment within 28 days after service. That means the time for compliance with the notice expired at midnight on 14 May,
1992.
The application seeking an extension of time for compliance with the notice was not filed until the following
day, on 15 May. It was, therefore, out of time.
Section 33(l)(c) of the Bankruptcv Act 1966 ("the Act") empowers the court to "extend before its expiration or,
.	if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any
such time. "

Section 41(6A) of the Act empowers the court to extend the time for compliance with a bankruptcy notice, but that power is expressly limited to a power exercisable on an application made prior to the expiration of the time fixed for compliance with the notice. There is on the face of the Act

no power to grant the relief here sought. I

I have been referred to the decision in Striemer v (1981) 37 A.L.R. 211. That was a case in which application to extend the time fixed by a bankruptcy notice for compliance with the notice was made prior to the expiration of the time fixed by the notice. However, the order was not made until one day after the date of expiration fixed by the notice. The court, in effect, held it had power to make an effective order extending time, given that the statutory requirements of a timely application had been

complied with. It seems to me that that case has nothing to

say to the present situation.

I therefore hold that the court has no power to extend the time fixed by the bankruptcy notice here in question for compliance with the notice. It is common ground that a ruling to this effect on this application will effectively dispose of the application. I therefore dismiss the application.

I certify that this and the preceding
two pages are a true copy of the
reasons for judgment herein of the

Honourable Mr. Justice Drummond.

Associate:

Date :