Re Manning, R. Ex parte Commonwealth Bank of Australia

[1993] FCA 918

919    193

JUflGMENT No. ........ ... , ....., .,,.,,,,,,..

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION	)
BANKRUPTCY DISTRICT OF THE	) NO. NP 2337 of 1992
STATE OF NEW SOUTH WALES	)

RE :  ROGER MANNING

Debtor

EX PARTE:  COMMONWEALTH BANK OF AUSTRALIA

Creditor

CORAM	:	HILL J
PLACE	:	SYDNEY
DATED	:	10 NOVEMBER 1993

EX TEMPORE REASONS FOR JUDGMENT

Before the Court is an application by the debtor, Mr Roger Manning, for an adjournment of the hearing of a petition dated 23 June 1992.

The petition was initially filed by the Deputy Commissioner of Taxation in June 1992. The Commonwealth Bank of Australia ("the Bank") made application to the Court to be substituted as a petitioning creditor in place of the Deputy Commissioner. That application came before a Registrar of the Court on 2 August 1993 when orders were made accordingly. It will be noted that by the time the Bank was substituted as a creditor, the petition had lapsed by force of s.52(4) of the Bankruptcy Act 1966 ("the Act"). No application had been made to the Court pursuant to that section to extend it for a

further period prior to its expiry.

When the matter came before me the solicitor for the Bank properly drew my attention to the fact that on its face the petition had expired. He sought, however, to submit that because there had been the substitution of the Bank as a creditor, time should run not from the time of the original petition but from the date of substitution of a new creditor.

That argument does not seem to find support in the language of the Act. Section 52(4) speaks in absolute terms whether the petition is one which proceeds in the ordinary way without substitution of a new creditor, or whether it proceeds to a hearing with the substitution of a new creditor in favour of the original petitloner. Its wording leaves little scope for argument. It is clear that unless before the 12 months from the presentation of the petition an application is made and granted extending the period, or a sequestration order is made on the petition, or the petition is dismissed or withdrawn, the petition lapses.

I was referred to the decision of Einfeld J in

Coblvn v Mercantile Credits Limited (unreported, 21 September 1992). In that case it seems that prior to the petition elapsing a date for hearing was set by a judge of the Court. When that date came the point was taken that the petition had lapsed. Relying upon the slip rule for power to correct an order or judgment not completely expressing the Court's intention, his Honour held that he had the power to extend the time on the facts of the particular case. In so doing, his Honour was able to distinguish the judgment of the Full Court of this Court in Re Youna: Ex parte Smith (1985) 5 FCR 204, a

unanimous decision of Bowen CJ, Sweeney and Lockhart JJ. His

Honour did not hold, nor could he have held, that the Court had some general power to extend the time of the currency of the petition. With respect to hls Honour, I have grave doubts as to the correctness of that decision, but it is unnecessary for me to decide the matter finally because in the present case no application was made to the Court which resulted in the making of an order by a judge of the Court or, on a delegation, by a Registrar, which did not truly reflect the Court's decision so as to found jurisdiction under the slip rule.

The only application to which reference has been
made in argument to me was an application to the Registrar to

substitute the Bank as a petitioning creditor. That

application was, however, made after s.52(4) had taken effect,	that is to say, it was in essence an application in respect of
which the Court had no jurisdiction. Certainly the fact that a Registrar of the Court made orders substituting the Bank as a petitioning creditor could not, coming as it did after the expiration of the petition, empower me now to act under the slip rule in the way that Einfeld J did in Van Coblyn's case.
The petition having lapsed, there is no petition before the Court and no need for me to consider accordingly whether an adjournment application would otherwise have succeeded. To reflect the correct position, I would make an order dismissing the petition, although I do not think that it is necessary that such an order be made when the petition has lapsed by force of the statute. There is no need for any other order.
I certify that this and the
preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Hill.
Associate:
Date :

2. DFLQNB?- 4 3

Debtor appeared for himself.

Solicitors for	Abbott Tout Russel Kennedy
Petitioning Creditor:
Date of Hearing:	10 November 1993