Re McVey, Ernest Andrew v Ex Parte Carswell & Co

[1995] FCA 946

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND

No. QN1385 of 1995

RE:  ERNEST ANDREW McVEY

Judgment Debtor

EX PARTE:               CARSWELL AND COMPANY

Respondent

AND:  ERNEST ANDREW McVEY

Applicant

JUDGE MAKING ORDER:           Cooper J

WHERE MADE:  Brisbane

DATE OF ORDER:  17 November 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondent's costs of and incidental to the application to be taxed, if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF QUEENSLAND

No. QN1385 of 1995

RE:  ERNEST ANDREW McVEY

Judgment Debtor

EX PARTE:               CARSWELL AND COMPANY

Respondent

AND:  ERNEST ANDREW McVEY

Applicant

CORAM:  Cooper J

PLACE:  Brisbane

DATE:  17 November 1995

REASONS FOR JUDGMENT

The court has before it an application by Ernest Andrew McVey seeking an order for the extension of time for complying with a bankruptcy notice.  The application does not seek in terms to have the bankruptcy notice set aside for any identifiable reason or at all.  The affidavit in support identifies a claim being made by Mr McVey against his former solicitors in respect of which he has instituted proceedings in the Supreme Court of Queensland.  Those proceedings were instituted on 5 October 1995.

In paragraph 7 of his affidavit in support of the application, Mr McVey asks, pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) ("the Act") for an extension of time for complying with the bankruptcy notice on the basis that the Supreme Court proceedings ought be allowed to continue to determination by the Supreme Court. Section 41(6A) of the Act provides :-

"Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of the bankruptcy notice :

(a)proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor, or

(b)an application to set aside the bankruptcy notice has been filed with the Registrar;

the Court may, subject to subsection (6C) extend the time for compliance with the bankruptcy notice."

It is common ground in these proceedings that by the time the application was filed in this court, the time for compliance with the bankruptcy notice had expired. The power and jurisdiction of the court to extend the time for compliance with a bankruptcy notice in the circumstances set forth in s.41(6A) are conditioned by the jurisdictional facts contained in the section.

In this case, those jurisdictional facts have not been established. It was not suggested, and in my view correctly, that the general power conferred by s.33 of the Act to extend time enabled the avoidance of the establishment of the jurisdictional facts. This seems to me to flow from the reasoning of Ryan J in McLean v Australia and New Zealand Banking Group Limited (1993) 42 FCR 300 and from the judgment of Gummow J in Re Carter;  Ex parte National Mutual Trustees Limited (1995) 129 ALR 435 and the cases cited therein by his Honour. Therefore, the application based as it is on s.41(6A), fails.

It was submitted that I ought give consideration to adjourning the application in order to enable Mr McVey to amend his material and put in additional material to sustain an application for the extension of time under s.41(7).  It seems to me, without deciding the issue, that there are substantial problems of a similar nature confronting any such application.  In my view, it is preferable in all the circumstances, and with the avoidance of additional costs in mind, to refuse the adjournment and to allow Mr McVey to institute such further applications as he may wish or to raise, as a matter of discretionary defence on the hearing of any petition, the matters which he wishes adjudicated in the Supreme Court proceedings.

Accordingly, I will refuse the application for an adjournment with costs.

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of and incidental to the application to be taxed if not agreed.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper.

Date:17 November 1995

Associate

Counsel for the Applicant:  R Clutterbuck

Solicitors for the Applicant:            Corney Newmann Turnour

Counsel for the Respondent:  R Morton

Solicitors for the Respondent:  Carswell & Company

Date of Hearing:  17 November 1995

Place of Hearing:  Brisbane

Date of Judgment:  17 November 1995