Utmission Pty Ltd v Crossan & Anor [2010] FMCA 759 (28 September 2010)

Last Updated: 6 October 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

UTMISSION PTY LTD v CROSSAN & ANOR

[2010] FMCA 759

BANKRUPTCY – Extension of Petition where proceedings stayed pending appeal.

Bankruptcy Act 1966 (Cth), s.52(5)

Applicant:

UTMISSION PTY LTD (ACN 002 053 661)

First Respondent:

SHARON GAIL CROSSAN

Second Respondent:

MATTHEW GORDON CROSSAN

File Number:

SYG 2433 of 2009

Judgment of:

Raphael FM

Hearing date:

28 September 2010

Date of Last Submission:

28 September 2010

Delivered at:

Sydney

Delivered on:

28 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr L Livingstone

Solicitors for the Applicant:

Staunton & Thompson Lawyers

For the Respondents:

In person

ORDERS

(1) The period at the expiration of which the Petition will lapse be a period of 24 months commencing on the date of presentation of the Petition.
(2) The Petition be adjourned until 7 days after the decision of the NSWCA when it shall be listed for mention before a Registrar by the Applicant.
(3) A signed and sealed copy of this order be served on the Respondent Debtor.
(4) A copy of this order be provided to the Official Receiver in Sydney within 2 days.
(5) Costs be reserved.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2433 of 2009

UTMISSION PTY LTD (ACN 002 053 661)

Applicant

And

SHARON GAIL CROSSAN

First Respondent

MATTHEW GORDON CROSSAN

Second Respondent

REASONS FOR JUDGMENT

1. The applicant creditor has applied to the Court seeking an extension of the life of a petition, pursuant to s.52(5) of the Bankruptcy Act 1966 (Cth), which allows an extension of the life of a petition for a total period of 24 months. The petition in the instant case was presented on 8 October 2009, and will expire on 8 October 2010 if the extension is not granted. The circumstances in which the application is made are that there is on foot an appeal to the New South Wales Court of Appeal from the original judgment upon which the bankruptcy notice, and the petition were founded.
2. The original judgment has currently been stayed by the New South Wales Court of Appeal and, therefore, no sequestration order could be made against the respondents. I am advised that the appeal is due to be heard in the Court of Appeal on 3 December 2010. The respondents, who are the appellants, have been recommended for pro bono legal assistance in relation to that appeal, but this does not appear to have resulted in any assistance coming forward.
3. In my view, the Court should be generous when considering a grant of leave to extend the life of a petition in circumstances such as those which exist in this case. There has been some dispute between the parties as to who was to blame for the fact that the appeal has taken rather longer to be listed for hearing than might have been originally expected. The decision of the District Court Judge against whom the appeal was made was handed down on 29 May 2009. There appears to have been some delay caused by the actions of the applicant’s solicitors and some delay caused by the inaction of the appellants themselves.
4. If the Court declines to grant the extension and, after the appeal is heard, the original judgment is upheld, it will be necessary for the applicant creditor to issue a new bankruptcy notice and new petition in order to secure the same result as that which is currently available to it. To my mind this would be an unnecessary expenditure of costs and of Court time. I believe that it is in the interests of the parties, and in the interests of the administration of justice that the extension of time be granted. But I have made orders requiring the petition to be listed for mention before a Registrar seven days after the decision of the New South Wales Court of Appeal so that the petition can proceed or be dismissed at the earliest possible time.
5. I make orders extending the life of the petition in accordance with the short minutes initialled by me, amended in brown, and placed with the papers. The costs will be reserved.
   

I certify that the preceding 5Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !fivefive (5) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: 5 October 2010