Thompson v Turnbull - [2015] FCCA 1563

FEDERAL CIRCUIT COURT OF AUSTRALIA

THOMPSON v TURNBULL

[2015] FCCA 1563

Catchwords:
BANKRUPTCY – Meeting of creditors – application to extend time for advertising – whether non-compliance is likely to have caused prejudice to any party – whether the invalidation would result to substantially inconvenience to any party – application allowed.

PRACTICE AND PROCEDURE – Interlocutory injunctions – ex parte application.

Legislation:

Bankruptcy Act 1966 ss.27, 30, 33, 64, 64A, 64N, 194
Bankruptcy Regulations 1996

Application by Benjamin Peter Piggott [2009] FMCA 1061
Peter Ian Parker and Phyllis Parker Ex Parte: Evan Robert Verge [1994] FCA 1048
Pretorius v Daltons Carpet Tiles Pty Ltd (1984) 1 FCR 346

Applicant:

LOUISE ANN THOMPSON AS TRUSTEE OF THE PERSONAL INSOLVENCY AGREEMENT OF PETER JOHN TURNBULL

Respondent:

PETER JOHN TURNBULL

File Number:

SYG 1515 of 2015

Judgment of:

Judge Street

Hearing date:

4 June 2015

Date of Last Submission:

4 June 2015

Delivered at:

Sydney

Delivered on:

4 June 2015

REPRESENTATION

Solicitors for the Applicant:

Mr B.N. Sewell
Sewell & Kettle

No appearance by the Respondent.

ORDERS

The time for holding of the meeting of creditors pursuant to s.194 of the Bankruptcy Act 1966 be extended to 24 April 2015.
The requirement to advertise the meeting of creditors held on 24 April 2015 as required by s.64A(2) the Bankruptcy Act1966 as specified in Schedule 6 Part 2 of the Bankruptcy Regulations1996 be disregarded for the purpose of the meeting on 24 April 2015.
The costs of the applicant in respect of this application be costs payable from the fund in the personal insolvency agreement on a trustee basis.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1515 of 2015

LOUISE ANN THOMPSON AS TRUSTEE OF THE PERSONAL INSOLVENCY AGREEMENT OF PETER JOHN TURNBULL

Applicant

And

PETER JOHN TURNBULL

Respondent

REASONS FOR JUDGMENT

This is an application within the Court’s jurisdiction under s.27 of the Bankruptcy Act 1966 in respect of an ex parte application for an extension of time for the holding of the meeting of creditors pursuant to s.194 of the Bankruptcy Act, so as to be extended to 24 April 2015, and for a requirement to advertise the meeting of creditors as required by s.64(2) of the Bankruptcy Act and Schedule 6 Part II of the Bankruptcy Regulations 1996 be disregarded.
The trustee has sworn a detailed affidavit identifying her extensive experience in the field of insolvency, and identifying her appointment as a controlling trustee, which was certified by the official receiver on 16 March 2015 in circumstances where the respondent executed an authority pursuant to Part X of the Bankruptcy Act on 10 March 2015, and in respect of which the applicant consented to accept the authority.
The respondent provided a statement of affairs on 12 March 2015, and between the date of appointment and 13 April 2015, the applicant conducted investigations into the respondent’s examinable affairs and prepared a report that was sent to creditors, which included a draft personal insolvency agreement.
The report to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FCCA 1563
Decision Date: 4 June 2015

CaseChat Overview and Summary

In *Thompson v Turnbull*, heard before Judge Street, the applicant sought an extension of time for the advertising of a meeting of creditors in bankruptcy proceedings. The core of the dispute concerned the consequences of non-compliance with the statutory advertising requirements and whether an extension should be granted to validate the proceedings.

The primary legal issue before the court was whether to grant an extension of time for the advertising of the meeting of creditors. This required the court to consider two key questions: firstly, whether the non-compliance with the advertising requirements was likely to have caused prejudice to any party; and secondly, whether invalidating the proceedings would result in substantial inconvenience to any party.

Judge Street reasoned that the purpose of the advertising requirement was to ensure that creditors were aware of the meeting and had an opportunity to participate. The court found that there was no evidence to suggest that any party had been prejudiced by the delay in advertising. Furthermore, the court considered that refusing the extension would cause substantial inconvenience by requiring the entire process to be recommenced. Applying these considerations, the court allowed the application for an extension of time.

Orders