re Moss, L. ex parte Tyaraf Pty. Limited [1985] FCA 403

NOTE: Settlement and entry of craers is csalt with in Order 36 of the Federal Csurt

GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES No. P 627 of 1985

Tyaraf Pty. Limitea (the petitioning creditor) seeks an order that the estate of Lou Mess (the debtor) be sequest-

rated. The case raises a short and novel point as to whetnec

the Court 15 given sovwer by s. 23(1)(c) of the Bankeurtcy Act 1966 to extend the time referred to in 3s. 44¢L'(c) of tne Act within waich a petition may be tresented for the sequestration of a debtor's estate. The point sxpears to be free From authcerity. section 44(1)(c) 18 an the following terms: "4aé, '1) A creditor's petiticn shali not tre presented against a debtor unless -

(c) the act of bankruptcy on which the petition 1s founded was committed within 6 months before the presentation of the petition."

The date of the act of bankruptcy relied upon in the petition was 24 October 1984 and the petition was presented on 24 April 1985. Since, in calculating the period of 31% months the day on which the petition is presented must be excludel

(Acts Interpretation Act 1901, 3.36(1)) the act of bankruptcy

was not committed "within 6 months" before the presentation of

the petition. However counsel for the creditor seeks an order

{a) upon such terms as it thinks fit, at any time adjourn any proceeding before it, either to a fixed date or generally;

(b&) at any time allow the amendment of any written process, oroceeding or notice under this Act; cr

(c) extend before its expiration or, if this Act does not expressly provide ts the contrary, after its expiration, any 1 limited by this Act, or any tima fixed by the Court or the Registrar under this Act (other than the time fined for compliance with the requirements cf a bpankrurtcy notice), for doing an act or thing or abridge any such time."

Counsel argues that the court is given power wR. n Th ra fam p oa p BQ cr rn : om "tS oO ba pv cer u

the expiration of which a creditor's petition will lapse if period of 12 months commencing on the date of presentaticn

the petition has expired before the court 25 asked to mane

"Counsel fcr the petitioning ry submitted that s, 33f1)(c) of the Act confer the court a general power aoplicable to ali cir ces in which time 15 limited by the Act or fix he court or the registrar, other than the time a for compi:- ance with the requirements of the bankruptcy notice. Zhe submitted that the section applied to s. £2(4) and (5S) of the Act; and she 1dentiltied the time limited ty the Act fer acing an act or thing within the mean- ing of s.23(1){c) as the time mentioned in 3.22(5' fer the enerciss of the court's power cf extensicn, namely, any time pefore the ation cf the pericc of 12 months commencing on the = oF presentation if the pneticicon.

Sub-sect1ons (4) and (£3 of s.F2 canrst £3: considered iundenendentiy of each other. Taney -€ design to ansure that a petition hac na lifts & sa a mum of 24 months from thr date petiticn,

ao ins ns M iw a a ct (D fer tum =] ts mh ct y 'Bb pt r or

of bankrustcy had Deen committed, say, 12 months refsre che

presentation of the retition. This would render nugatory, tnt

condition peeacedent referred to in s.44(]1)(c>. Tt is

buziness dealings vith ham that they should eniw with cerwsincur

acts within specified times. It is not a frovision which

enables the court to, an efrect, circumvent the statutory oar

ta the making of a sequestration order in a case wh of bankrustcy has not besn committed within 6 mcnths before tne presentation cf the petition. .

there has peen no case where the court has made an order cf the rand sougnt. This 1s not of itself a réascn for refusing the application, Fut 1t confirms my view that s. 73(1l\ic) does not

Since the act cf bankruptcry relied uron in the petition was not committed within 6 months before presentation

dizmisseqa and I 29 ocder. There wrll be ns order a