DNC Pi, - kas "aN : ty Ne = \ CATCHWORDS . F x. A Bankruptcy - Part X arrangement - creditors' meeting held € outside time prescribed by s.194(1)(a) - whether Registrar has power to extend time after expiration of 28 day period. Young v. Smith, Full Federal Court, 4 April 1985 - distinguished. IN THE MATTER of an application by the Deputy Registrar in Bankruptcy pursuant to rule 119 of the Bankruptcy Rules in Re Gowing and Anor. No. W271/84x Beaumont, J. 21 June 1985. Canberra IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE we SS AUSTRALIAN CAPITAL TERRITORY No. W271/84¥ IN THE MATTEP of an application by the Deputy Registrar in Bankruptcy pursuant to rule 119 of the Bankruptcy Rules in Re Gowing and Anor. MINUTES OF GRDER Ccudge making order: Beaumont, J. Date arder made: 21 June 1985. Where made: Canberra Answer the question referred as follows: Queetion: Does the Registrar have powér to extend the time by which the mesting of creditors should have been held pursuant to s.194 of the Act after that time has expired? Hd =] zo g iD rs; wy 3B int Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE ee eee AUSTRALIAN CAPITAL TERRITORY No. W271/84X IN THE MATTER of an application by the Deputy Registrar in Bankruptcy pursuant to rule 119 of the Bankruptcy Rules in Re Gowing and Anor. ie) D> =z Beaumont, J. 4 sl u 21 June 1985, REASONS FOR JUDGMENT The facts of this reference are that on 12 November 1984, Mr. Donald Lancaster Gowing and Mrs. Lynette Winstone Gowing ("the debtors") signed an authority pursuant to 5.188 of the Bankruptcy Act, 1966 ("the Act"). The authority empowered a solicitor, Mr. L.M. Derwin, to call a meeting of creditors of the debtors for the purposes of Part X of the Act. By s.194(1) of the Act, it is provided that the meeting of creditors to be called in pursuance of an authority under s.188 shall he held: td "(a) not later than 28 days after the authority is siqned by the debtor ...; and (b) not earlier than 14 days after the notices to creditors are delivered or sent by post under sub-section (2)." A meeting of the creditors of the debtors was not held until 12 December 1984, i.e., 30 days after the giving of the authority. The meeting purported to resolve to accept a composition with the debtors and to nominate Mr. L.d. Baker, a registered trustee, as trustee of the composition. Mr. Baker has now sought from the Registrar an extension of time within which to hold the meeting of creditors. The application for extension 1s brought pursuant to §.33(Z)(c) of the Act. So far as relevant it provides: "The Registrar may- ere {c) extend before 1ts expiration or, if this Act does not expressly provide to the contrary, after ats expiration, any time limited by this Act ..." It follows that the Registrar has power to grant the extension sought except if 5.194 "expressly provide(s) to the contrary". . 3. "To be 'express provision' with regard to something it ais not necessary that that thing should be specially mentioned; it is sufficient that it is directly covered by the language however broad that language may be which covers it so long as the applicability arises directly from the language used and not by inference therefrom" (per Lord Radcliffe in Shanmugam v. Commiss:oner for Reqistration of Indian and Pakistani Residents (19627 A.C. 515 at p.827). Thus, althouch express words are not required, the qualification to $.33(2)(c) does require something that indieates an express intention that its provisions shall not apply to the time limit laid down by s.194 for the holding cr of the meeting of creditors (see Metropolitan Dastrict Railway Co. v. Sharpe (158) 50 L.J.0.B. 14 per Lord Blackburn at p.21). In my opinion, there 1s nothing in the languase of 3.194 or elsewhere in the Act which could form a foundation for a suggestion that the general power to extend time contained in s.33(2)(c) is not available for the purpose of extending the time for holding the meeting. All that ¢.194(1) relevantly does is to fix a time limit for this purpose: it is silent om the question whether any extension of that limit should Ke permitted. It follows, in my view, that the qualification in 5.33(2)!c) is not applicable. Although the question was left open by a Full Court 4. of this Court in Pretorius v. Dalton Carpet Tiles Pty. Limated (1984) 54 A.L.R. 743 at p.750; cf. Greve; Ex parte Horsburgh (1967) 10 F.L.R. 187), the recent decision of a Full Court of this Court in Young v. Smith (unreported, 4 April 1985) may, I think, he distinguished for present purposes. It was there held that 5.33(1)(c), a section identical in its terms to s.33(2)(c) but directed to the Court rather than to the Registrar, does not empower the Court to extend the period at the expiration of whicha creditor's petition will lapse if the period of twelve months commencing on the date of presentation of the petition has expired before the Court is asked to make an order extending the said periad. But that was a special context: ain its reasons (at p.11), the Court emphasised the policy evidenced by the provisions of $.52(4) and (5) which, 1t held, was inconsistent with the concurrent existence of a general power to extend time under a general provision sach as $.353(i)(c). In its view: in "Paragraph 33(1)(c) is directed essentially to provisions in the Act requiring the doing of certain acts or things within specific times. Many examples may be found in the Act, but we refer to the following as sufficient examples for present purposes: sub-ss. 54(1) and (2), 56(13), 102(1), 104(3), 167(6) and (7), 188(4) and 203(1), (3) and (4)." In the present case, there are no special context in and no special policy considerations of the kind present in Young v. Smith, supra. Moreover, there is no provision such as s.52(4) or (5) from which it is possible to spell outa legislative intention negativing the power to extend time found in Young v. Smith, supra; s5.194(4) is directed only at a departure from the provisions of $.194(2) and (3). In short, s.194 has nothing to say on the question which now arlses. Whether the discretion to extend time should be exercised in the present type of case is, of course, another matter. I answer the question referred to as follows: $.33(2)(c) of the Act does empower the Registrar to extend the time by which the meeting of creditors should have been held pursuant to s.194 of the Act after that time has expired. | certify twat tins and the 4 proveding peges ar2 & tra cony of the reasons for judgment herein of The Honourable Mr Justice Beaumont. HK Associate Dated A-6:8S