Sommer v C Pty Ltd (No.2)

In *Sommer v C Pty Ltd (No.2)*, heard by Judge Manousaridis, the applicant sought to set aside a bankruptcy notice that had been issued and served by the respondent creditor. The core of the dispute revolved around the respondent's ability to unilaterally withdraw or waive compliance with the bankruptcy notice after the applicant had initiated proceedings to have it set aside.

The central legal issue before the court was whether a creditor, having issued and arranged for the service of a bankruptcy notice, could subsequently elect to "withdraw" that notice or "waive" the requirement for compliance with its terms once an application to set it aside had been filed by the debtor.

Judge Manousaridis determined that it was not open to a creditor to unilaterally withdraw a bankruptcy notice or waive compliance with its requirements after the debtor had applied to have the notice set aside. The court reasoned that once such an application is made, the bankruptcy notice and the creditor's rights under it become the subject of judicial scrutiny, and the creditor cannot unilaterally alter the situation to circumvent the legal process.

Accordingly, the court answered the separate question in the negative. The costs associated with this separate determination were reserved.