Sharples v Hanson, In the matter of Sharples

REASONS FOR JUDGMENT 1 I am presently hearing two applications pursuant to the Bankruptcy Act 1966 (Cth) (the "Act") filed on 2 December 1999 and referred to me by the Registrar on 5 January 2000. One of them (the "compliance application") seeks the following relief: 1. That the time for compliance with the requirements of the bankruptcy notice dated 8 October 1999 and served upon (the applicant) on 11 November 1999 be extended. 2. That the respondent pay the costs of and incidental to the application to be taxed. 3. Such further or other order as the Honourable court may seem meet. 2 The other (the "Court of Appeal application") seeks the following relief: 1. The order Court of Appeal, Supreme Court of Queensland Appeal No: 9834/98 delivered 7 September 1999 be set aside. Bankruptcy Act 1966. 2. That the Respondent pay the costs of and incidental to this application to be taxed. 3. Such further or other order as the Honourable court may seem meet. 3 The compliance application was made in the first instance to the Registrar, who declined it. Although this may not appear from the material, that decision was based upon the absence of an affidavit filed in support of the application. According to the registry records, the supporting affidavit upon which the applicant now seeks to rely was not filed until 3 December. He disputes this, saying that it was filed on 2 December. Although there is presently no evidence before the Court to that effect, he says that he is willing to give such evidence. He has sought to cross-examine registry personnel to the same effect. I propose to dispose of the matter upon the basis that the affidavit was available on 2 December. In doing so, I am not reflecting upon the accuracy of the registry records. I merely make that assumption for present purposes. The relevance of this aspect arises from the fact that time for compliance with the bankruptcy notice expired on 2 December. It will therefore be necessary to identify the extant applications as at that date. The applicant asserts that the affidavit identifies the relief then being sought by him and so makes up for the absence of any express reference to such relief in the applications themselves. 4 The affidavit attacks the bankruptcy notice in four ways, although each attack is in very general terms. The four lines of attack are: · that the applicant has a bona fide counter-claim, set-off or cross demand which is "substantial", but not said to equal or exceed the amount of the judgment debt; · that the order for costs on which the notice is based should be set aside; · that the bankruptcy notice is an abuse of process, used to "frustrate and divert" the applicant; and · that the bankruptcy notice "is defective for want of a Debtor and Respondent". 5 On 17 December, leave was given to file an amended application which sought: