Re Pahl, D.J. v Ex parte Pahl, D.J

[1994] FCA 1026

RE: DAVID JOHN PAHL
EX PARTE: DAVID JOHN PAHL
No. QN1384 of 1994
FED No. 1026/94
Number of pages - 2
Bankruptcy

COURT

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

CATCHWORDS

Bankruptcy - application to set aside bankruptcy notice - judgment debt set aside - act of bankruptcy remains

Bankruptcy - extension of time to comply with bankruptcy notice

Bankruptcy Act 1966 - s 41(6A), 41(6C)

HEARING

BRISBANE, 15 December 1994
#DATE 16:12:1994
#ADD 19:4:1995

Counsel for the applicant: Mr W. Campbell

Solicitors for the applicant: Thompson King Connolly

Counsel for the respondents: Mr P. Hastie

Solicitors for the respondents: Sly and Weigall Cannan and

Peterson

ORDER

THE COURT ORDERS THAT: 1. The application to set aside the bankruptcy notice be dismissed. 2. The debtor pay the creditors' costs of and incidental to the application to be taxed.
NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

KIEFEL J On 12 September 1994 the creditors obtained a judgment in the District Court of Queensland against the debtor in the sum of $203,736.60 plus costs, and the bankruptcy notice dated 20 October 1994 is founded upon that judgment. Prior to that judgment a confession by the debtor that the sum claimed was due had been filed in that court. Notwithstanding, an application was brought before a judge of that court and on 14 December 1994 an order was made setting aside the judgement. His Honour's reasons are not yet published and I am informed by counsel for the creditors that an appeal will be considered.

1. The debtor applies to set aside the bankruptcy notice, it would seem on the basis that there is now no debt. There is, however, an act of bankruptcy committed by reason of non compliance with the notice although it may be, subject to any appeal, that there will be no debt to which the creditor could depose upon the hearing of the petition. In these circumstances, I do not propose to make an order affecting the bankruptcy notice. There was another matter raised by counsel, namely, the question as to whether an extension of time for compliance with the bankruptcy notice ought be granted, but in respect of which I have heard no submissions.

2. Although it was said an order was sought under s.41(6A) (and see s.41(6C)) extending the time for compliance with the requirements of the bankruptcy notice I received no submissions on the matter. I therefore decline to make any order for an extension. The debtor may, if he is so advised, bring a further application on proper material and make further submissions to the court if an extension is still to be pursued. For the moment, there appears to me on the basis of the matters raised, nothing which would prima facie give rise to such an entitlement, and having regard to the requirements of diligence and that the application recently entertained by the District Court be one instituted bona fide, I would have thought there might be some difficulty.

3. There will be a further order that the debtor pay the creditors' costs of an incidental to the application to be taxed.