Sharpe v W H Bailey and Sons Pty Ltd

[2014] FCCA 402

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARPE v W H BAILEY & SONS PTY LTD [2014] FCCA 402

Catchwords:
BANKRUPTCY – Bankruptcy notice – application to extend time for compliance with bankruptcy notice – where appeal of judgment upon which bankruptcy notice based dismissed – where applicant’s health has hindered application for special leave to appeal to High Court – whether to adjourn – whether to grant application.

Legislation:
Federal Circuit Court (Bankruptcy) Rules

Narain v Eurasia (Pacific) Pty Ltd [2010] FCA 1352

Applicant: DAVID GEORGE SHARPE

Respondent: W H BAILEY & SONS PTY LTD

File Number: SYG 690 of 2013

Judgment of: Judge Raphael

Hearing date: 24 February 2014

Date of Last Submission: 24 February 2014

Delivered at: Sydney

Delivered on: 24 February 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondent: Hargraves

ORDERS

1. Application dismissed.

2. The applicant must pay the respondent’s costs to be taxed, if not agreed, in accordance with the Federal Circuit Court (Bankruptcy) Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 690 of 2013

DAVID GEORGE SHARPE

Applicant

And

W H BAILEY & SONS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. There comes before the court today the adjourned hearing of an application to extend time for compliance with a bankruptcy notice.  The matter came before me on 18 November 2013.  At that time, the debtor, Mr Sharpe, had in train an application for leave to appeal against the judgment which founded the bankruptcy notice.  For the reasons which I gave in my decision on that day, I allowed the time for compliance with the bankruptcy notice to be extended until 24 February 2014.

2. In the interim, the application for leave to appeal came before the Supreme Court and was dismissed.  Indeed, it was dismissed in December 2014 and the creditor has been most patient in waiting until today when he had leave to come back earlier and seek dismissal of the application to extend time.  It also happens that Mr Sharpe has suffered some serious medical problems in the interim, and he says this has delayed his ability to seek leave of the High Court to appeal against the decision of the New South Wales Court of Appeal.  This may well be the case, but the general principle that is applied in matters of this type is that whilst the Court is generous about extending time where an appeal is on foot against the primary judgment, this does not extend automatically to applications for leave to appeal to the High Court: Narain v Eurasia (Pacific) Pty Ltd [2010] FCA 1352.

3. I have not seen a copy of the decision of the New South Wales Court of Appeal, but I am sure that it took into account the views expressed by Campbell J that were referred to in my earlier judgment.  Noting that a refusal to extend time for compliance with a bankruptcy notice is only the first stage in bankruptcy proceedings, that the debtor still has an opportunity to convince the court at the time of the hearing of the petition that it should be adjourned, I am of the view that it is appropriate at this time to dismiss the application so that the act of bankruptcy will occur if the debtor does not make payment by midnight tonight.  The application is dismissed and the applicant must pay the respondent’s costs to be taxed, if not agreed, pursuant to the Federal Circuit Court (Bankruptcy) Rules.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  5 March 2014