Re Riordan, John Richard Ex Parte Riordan, John Richard v Direct Acceptance Corp Ltd (in liq)

[1995] FCA 1169

CATCHWORDS

BANKRUPTCY - Bankruptcy Notice  - whether application to extend time for compliance is competent if filed after expiry of time for compliance.

Bankruptcy Act 1966 (Cth) - s 41(6A)

Streimer v Tamas (1981) 54 FLR 253
Re Roland Bleyer; Ex parte TCN Channel 9 Pty Limited
(Unreported, Gummow J, 2 March 1993)

RE: JOHN RICHARD RIORDAN; EX PARTE JOHN RICHARD RIORDAN v DIRECT ACCEPTANCE CORPORATION LIMITED (RECEIVER AND MANAGER APPOINTED) (In Liquidation)

No. NN 205 of 1995

FOSTER J
25 JULY 1995
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NN 205 of 1995
  )
BANKRUPTCY DIVISION              )

RE:JOHN RICHARD RIORDAN

Debtor

EX PARTE:JOHN RICHARD RIORDAN

Applicant

AND:DIRECT ACCEPTANCE CORPORATION LIMITED (RECEIVER AND MANAGER APPOINTED) (In Liquidation) (ACN 000 016 651)

Respondent

JUDGE MAKING ORDERS:    FOSTER J

DATE:     25 JULY 1995

PLACE:    SYDNEY

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent's costs of this application.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NN 205 of 1995
  )
BANKRUPTCY DIVISION              )

RE:JOHN RICHARD RIORDAN

Debtor

EX PARTE:JOHN RICHARD RIORDAN

Applicant

AND:DIRECT ACCEPTANCE CORPORATION LIMITED (RECEIVER AND MANAGER APPOINTED) (In Liquidation) (ACN 000 016 651)

Respondent

CORAM:    FOSTER J

DATE:     25 JULY 1995

PLACE:    SYDNEY

REASONS FOR JUDGMENT
  (Extempore)

HIS HONOUR:   This is an application by the debtor, John Richard Riordan to set aside the Bankruptcy Notice issued against him by the respondent, Direct Acceptance Corporation Limited (Receiver and Manager Appointed) (In Liquidation).  The order sought today is that the application be adjourned until further order and the time for compliance with the Bankruptcy Notice be extended until further order.

The Bankruptcy Notice, which was issued on 27 January 1995, requires the debtor to comply with the Notice within 14 days after service of the Notice on him (excluding the day on which the Notice is served).  It appears clearly from the affidavit of Allen Kavanagh of 23 March 1995 that the Bankruptcy Notice was served upon the applicant on 8 March 1995.  The time for compliance with the Notice accordingly expired on 22 March 1995.

On 23 March 1995, the debtor successfully applied to Deputy Registrar Whitehead for an extension of the period of time for compliance with the Bankruptcy Notice until 27 April 1995.  On the same day the debtor filed the application to set aside the Bankruptcy Notice.

It is quite clear then, that at the time of the making of the application both for the setting aside of the Bankruptcy Notice and for the extension of time for its compliance, the period required by the Bankruptcy Notice had in fact already expired.  The order for extension of time made by Deputy Registrar Whitehead, which is in conventional form, states that the extension of 27 April 1995 is granted upon the condition that the Bankruptcy Notice was served on the debtor on 9 March 1995.  This was the approximate date of service indicated in paragraph 1 of the affidavit of John Richard Riordan of 23 March 1995.  It appears to be incorrect in light of the affidavit of Allen Kavanagh referred to earlier.

It is apparent, therefore, that the basis for the making of the order did not exist, the condition precedent was not fulfilled, and the order was therefore a nullity. 

Notwithstanding that fact, it has been put to me with some force on behalf of the applicant debtor that I should extend the time for compliance with the Bankruptcy Notice.  The argument that has been put to me is based upon certain passages of the joint judgment of Deane and Ellicott JJ in Streimer v Tamas (1981) 54 FLR 253 at 258 and 259.

These passages are to the effect that s 41(6A) of the Bankruptcy Act 1966 (Cth) confers jurisdiction on the Court to make orders extending the time for compliance with a Bankruptcy Notice, notwithstanding the fact that at the time of making the order the time for compliance with the Bankruptcy Notice has already expired, provided that one of the two limbs of sub-s (6A) has been fulfilled. Sub-section 41(6A) provides:-

"41 (6A) Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a 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."

Streimer, and other cases which have considered it, were closely analysed by Gummow J in Re Roland Bleyer; Ex parte TCN Channel 9 Pty Limited (Unreported, 2 March 1993).  In that case the application to set aside the Bankruptcy Notice had also been filed after the expiry of the Bankruptcy Notice and counsel for the debtor also relied on Streimer.  Gummow J rejected the application, distinguishing Streimer on the basis that:-

"In that case the application under the section had been instituted during the currency of the bankruptcy notice although it had not been disposed of until after the period had expired."

In my view, this also constitutes a point of distinction between Streimer and the present case. In the present case neither of the prerequisites set out in s 41(6A) have been complied with, as the application to set aside the Bankruptcy Notice was not filed before the expiration of the time fixed by the Court for compliance with the requirements of the Bankruptcy Notice.

I am, therefore, of the view that, in these circumstances, this Court has no jurisdiction to make the order sought.  Accordingly, the application is dismissed with costs. 

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate:
           Date:   25 JULY 1995

A P P E A R A N C E S

COUNSEL FOR THE APPLICANT:      E. G. ROMANIUK

INSTRUCTED BY:                  JOHN R. RIORDAN SOLICITORS

COUNSEL FOR THE RESPONDENT:     D. RYAN

INSTRUCTED BY:                  FREEHILL, HOLLINGDALE & PAGE

DATE OF HEARING:   25 JULY 1995

DATE OF JUDGMENT:  25 JULY 1995