Shepard v Ireland (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHEPARD v IRELAND (No.2) [2011] FMCA 199

BANKRUPTCY – Appointment of controlling trustee under Part X – duty to call creditors’ meeting within 25 working days – application by trustee for extension of time – 17 working days extension allowed.

Bankruptcy Act 1966, ss.33, 194

Shepard v Ireland [2011] FMCA 187

Applicant: ADAM SHEPARD

Respondent: WILLIAM EDWARD IRELAND

File Number: SYG 508 of 2011

Judgment of: Smith FM

Hearing date: 24 March 2011

Delivered at: Sydney

Delivered on: 24 March 2011

REPRESENTATION

Counsel for the Applicant: Mr M Rosenblatt

Solicitors for the Applicant: Somerset Ryckmans

Counsel for the Respondent: No appearance by or on behalf of the Respondent

ORDERS

1. Pursuant to s.33(1)(c) of the Bankruptcy Act 1966 (Cth) the time provided in s.194(1)(a) is extended by 17 working days after 1 April 2011.

2. Order 1 is conditional upon the applicant giving copies of his affidavit sworn on 23 March 2011 with its annexure, together with a copy of these orders, to the petitioner in proceedings SYG144/2011 and to all other unsecured creditors identified in the respondent’s statement of affairs or otherwise known to the applicant, by post dispatched no later than 3 pm on 28 March 2011.

3. Any creditor of the respondent has liberty to apply to the Court to vacate or vary Order 1, by filing an interim application with a return date for hearing obtained from the Associate to Smith FM which allows 2 working days’ notice to the applicant.

4. No orders as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 508 of 2011

ADAM SHEPARD

Applicant

And

WILLIAM EDWARD IRELAND

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This judgment explains the orders which I am making on a final basis, in response to Mr Shepard’s application for an extension of time for convening a creditor’s meeting under s.194 of the Bankruptcy Act.

2. I have previously explained the nature of the application and its statutory context in my judgment in Shepard v Ireland [2011] FMCA 187. I explained my reasons for allowing only a short adjournment on an ex parte application.  I stood the matter over to today to allow service of the application on the National Australia Bank. The NAB is a creditor of Mr Ireland and has a pending creditor’s petition, the hearing of which will be required by statute to be adjourned for the period up to the first meeting of creditors.

3. Notice has now been served on the NAB’s solicitors, who have responded that “The bank does not wish to appear on your client’s application”.  My concern that a petitioning creditor might wish to oppose the proposed extension has, therefore, been allayed. 

4. My concern that I was unable to assess whether there was any merit in postponing the summoning of creditors to vote on the proposed insolvency agreement, based on lack of knowledge as to the contents of the proposal, has also been allayed.  Mr Shepard today filed an additional affidavit, attaching a…