Ramsay Health Care Australia Pty Ltd v Compton

1. The interlocutory application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 Before me is an interlocutory application seeking an order under s 52(5) of the Bankruptcy Act 1966 (Cth) (the Act) extending to 5 December 2016 the period after which the bankruptcy petition presented in this proceeding will lapse. The bankruptcy petition was presented on 5 June 2015. 2 On 9 June 2016 an order was made under s 52(5) by Flick J extending this period to 5 September 2016. In my opinion it is not open to me to make such an order and the interlocutory application will therefore be dismissed. 3 Section 52(5) of the Act provides: The Court may, at any time before the expiration of the period of 12 months commencing on the date of presentation of a creditor's petition, if it considers it just and equitable to do so, upon such terms and conditions as it thinks fit, order that the period at the expiration of which the petition will lapse be such period, being a period exceeding 12 months and not exceeding 24 months, commencing on the date of presentation of the petition as is specified in the order. 4 The difficulty that s 52(5) presents in this case is not that an order has previously been made extending the period of time at the expiration of which the creditors petition is to lapse. The problem is that the 12 month period commencing on the date of the presentation of the creditors petition has already expired. 5 The language of s 52(5) is very clear. Section 52(5) only applies where the 12 month period commencing on the date of the presentation of the petition has not expired at the time of making the relevant order. 6 There is nothing to prevent the Court making more than one order under s 52(5) if its requirements are otherwise satisfied. However, for any such order to involve a valid exercise of power under s52(5), it would have to be made within 12 months of the presentation of the bankruptcy petition. 7 This interpretation of s 52(5) is consistent with the conclusion of Burchett J in Re Svir; Ex Parte Deputy Commissioner of Taxation (1998) 83 FCR 314. 8 Neither party made any submission that the order previously made in this matter pursuant to s 52(5) should be varied pursuant to Rule 39.05 of the Federal Court Rules 2011 (Cth) on the basis that it involved an "accidental slip or omission". There are considerable difficulties in framing the application for an extension of time in those terms. However, in circumstances where no reliance is placed upon the "slip rule" I need not say anything more about it. 9 The interlocutory application will be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.