Zhang v Cheng
[2020] FCCA 492
•6 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v CHENG | [2020] FCCA 492 |
| Catchwords: BANKRUPTCY – Urgent application in respect of a petition about to expire – whether the period of time is one in respect of which sub-s.36(2) of the Acts Interpretation Act 1901 (Cth) has application – order made varying order extending time. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.36 |
| Cases cited: Minister for Immigration and Border Protection v Kumar [2017] HCA 11 |
| Applicant: | MEI ZHANG |
| Respondent: | YE CHENG |
| File Number: | SYG 617 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 6 March 2020 |
| Date of Last Submission: | 6 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Burchett |
| Solicitors for the Applicant: | CSJ Legal |
| Solicitors for the Respondent: | Ms Li Keypoint Law |
ORDERS
The Court varies order 1 made on 8 March 2019 by extending time before expiry of the petition up to and including 9 March 2020 pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth) and s.36(2) of the Acts Interpretation Act 1901 (Cth).
The matter is fixed for hearing at 9:30am on 9 March 2020 before Judge Street.
Leave is granted to the applicant to file and serve any further affidavit evidence and or submissions on which the applicant wishes to rely by 5:00pm on 6 March 2020.
THE COURT NOTES THAT:
The solicitor for the respondent on behalf of the respondent consented to the adjournment of the matter for hearing at 9:30am on 9 March 2020 and consented to the order extending time before expiry of the petition and confirmed that no issue as to the validity of the same will be raised at the final hearing.
DATE OF ORDER: 6 March 2020
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 617 of 2018
| MEI ZHANG |
Applicant
And
| YE CHENG |
Respondent
REASONS FOR JUDGMENT
These proceedings are ones that were commenced on 8 March 2018. A Judge of the Court on 8 March 2019 made an order extending time under sub-s.52(5) of the Bankruptcy Act 1966 (Cth) for a period expiring on 8 March 2020. The matter was listed today before the Court for an urgent application to have the matter heard today insofar as the petition that otherwise had been said to expire on Sunday, 8 March 2020.
Mr Burchett of counsel for the applicant has submitted that the period of time is one to which sub-s.36(2) of the Acts Interpretation Act 1901 (Cth) has application and that by reason of sub-s.36(2) of the Acts Interpretation Act 1901 (Cth) the Court has power to extend the period of time in respect of elapsing up to and including 9 March 2020.
The Court accepts that submission, consistent with the principles identified in Roskell v Snelgrove [2008] FCA 427 at [44] to [47] and Minister for Immigration and Border Protection v Kumar [2017] HCA 11.
The Court raised with the solicitor for the respondent that if there was any issue as to the validity of the order extending time the Court could hear the matter today. The solicitor for the respondent confirmed, after being given an opportunity to obtain instructions, that no issue would be raised in respect of the validity of the extension of time order.
In any event, the Court is satisfied, for the reasons already given, that the Court has power under the provisions of the Bankruptcy Act 1966 (Cth) taken together with the Acts Interpretation Act 1901 (Cth), as referred to above, to extend the time that had been the subject of the order made on 8 March 2019 up to and including 9 March 2020. The Court varies order 1 made on 8 March 2019.
I certify that the preceding five (5) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 March 2020 and the parties were provided sealed copies of the Court’s orders
Associate:
Date: 23 April 2020
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