Lamb v Sherman [2023] FCAFC 85

FEDERAL COURT OF AUSTRALIA

Lamb v Sherman [2023] FCAFC 85 Appeal from: Sherman v Lamb [2023] FCA 168

File number: QUD 60 of 2023 NSD 450 of 2022

Judgment of: RARES, ROFE AND DOWNES JJ

Date of judgment: 25 May 2023

Date of final orders: 5 June 2023

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from making of sequestration order – where, at 4:37pm on last day for compliance, bankrupt lodged by electronic communication application to set aside bankruptcy notice under s 41(6A) of Bankruptcy Act 1966 (Cth) – whether application to set aside bankruptcy notice is "made" to the Court within meaning of s 41(6A)(b) by electronic lodgment of application or by its acceptance for filing – where r 2.01(1)(a) of Federal Court (Bankruptcy) Rules 2016 (Cth) provides application must be "made" by filing – where r 2.25(3) of Federal Court Rules 2011 deems electronic lodgment after 4:30pm to be filed, if accepted, on next business day – whether act of bankruptcy committed within six months before presentation of petition as required by ss 44(1)(c) and 52(1) of the Act – where Registrar purported to extend time for compliance with bankruptcy notice after application lodged – whether Registrar's orders extending time for compliance capable of affecting earlier act of bankruptcy – when application to set aside bankruptcy notice "made" within the meaning of s 41(6A) of the Act – held: appeal dismissed. PRACTICE AND PROCEDURE – operation of rr 2.21-2.25 of Federal Court Rules 2011 regarding document lodgment and filing – when document lodged by electronic communication is filed pursuant to r 2.25.

Legislation: Bankruptcy Act 1966 (Cth) ss 33(1)(c), 40(1)(g), 41(6A), 41(7), 44(1)(c) and 52(1) Federal Court of Australia Act 1976 (Cth) ss 25(6) and 35A Federal Court (Bankruptcy) Rules 2016 (Cth) rr 1.04 and 2.01 Federal Court Rules 2011 rr 2.21(1), 2.23, 2.24, 2.25(1), 2.25(3), 2.26 and 2.27