re Moss, L. ex parte Tyaraf Pty. Limited

Re: LOU MOSS (also known as LOUIS MOSS)
Ex Parte: TYARAF PTY. LIMITED
No. P 627 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA
GENERAL DIVISION BANKRUPTCY DISTRICT
OF THE STATE OF NEW SOUTH WALES
Morling J.

CATCHWORDS

Bankruptcy - act of bankruptcy - not committed within 6 months before presentation of petition - application for extension of time - power of Court to extend time - application dismissed.

Bankruptcy Act 1966, ss. 33(1)(c) and 44(1)(c)

HEARING

SYDNEY
#DATE 23:8:1985

ORDER

1. Petition dismissed.

JUDGE1

Tyaraf Pty. Limited (the petitioning creditor) seeks an order that the estate of Lou Moss (the debtor) be sequest rated. The case raises a short and novel point as to whether the Court is given power by s. 33(1)(c) of the Bankruptcy Act 1966 to extend the time referred to in s. 44(1)(c) of the Act within which a petition may be presented for the sequestration of a debtor's estate.

1. The point appears to be free from authority. Section 44(1)(c) is in the following terms:
   
   

"44. (1) A creditor's petition shall not be presented against a debtor unless -

. . .

(c) the act of bankruptcy on which the petition is founded was committed within 6 months before the presentation of the petition."

1. The date of the act of bankruptcy relied upon in the petition was 24 October 1984 and the petition was presented on 24 April 1985. Since, in calculating the period of six months the day on which the petition is presented must be excluded (Acts Interpretation Act 1901, s.36(1)) the act of bankruptcy was not committed "within 6 months" before the presentation of the petition. However counsel for the creditor seeks an order under s. 33(1)(c) to overcome this difficulty.

2. Section 33(1) provides as follows:
   
   

"33. (1) The Court may -

(a) upon such terms as it thinks fit, at any time adjourn any proceeding before it, either to a fixed date or generally;

(b) at any time allow the amendment of any written process, proceeding or notice under this Act; or

(c) 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."

1. Counsel argues that the court is given power by s. 33(1)(c) to "extend ... any time limited by this Act ... for doing an act or thing ..." and that this power is sufficient to enable the court to order that the time for presentation of the petition be extended to 24 April 1985. He argues that in the circumstances of the case, no prejudice would be suffered by the debtor or by other creditors were the court to make the order sought.

2. However, I am of the view that s. 33(1)(c) does not…