Younan, Re T. Ex Parte Hidabe Pty Ltd [1986] FCA 625

iW THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF NEW SOUTH WALES AND THE AUSTRALIAN CAPITAL TERRITORY

No. B2350 of 1986

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RE: TONY VYOUNAN

EX PARTE: HIDABE PTY LIMITED

CORAM : Evatt J

DATE : 23 December 1986 PLACE: Sydney

REASONS FOR JUDGMENT

Before the Court 15 an application dated 26 August 1986 by the judgment debtor seeking order of the Court that the Court order made earlier that day in the proceedings be vacated and that the

Bankruptcy Notice B2350/86 1ssued on 28 May 1986 be set aside.

The brief history leading up to the filing of the said

application by the judgment debtor is as follows.

The judgment creditor, Hidabe Pty Limited, trading as Rigby's Home Furnishers, on 8 May 1986 made application that a Bankruptcy Notice be issued under the Bankruptcy Act 1966 (the Act) against

Tony Younan (the judgment debtor), in respect of a final judgment

pan . ' . obtained by the judgment creditor against the deb Geart "the \ XN ~ By

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District Court at Taree on 25 February 1986 inf 'the sum of

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$11,789.12. The said notice was issued by the Court on 28 May 1986, it being a "21 day notice". It would appear that the said notice was served upon the debtor on 17 June 1986 so that the last day for compliance with the Notice would have been 8 July 1986.

On 7 July 1986 an application supported by affidavits of the judgment debtor anda Mr Thomas Michael Clune, a law clerk, and Patrick Joseph O'Brien, solicitor, was filed with the Court. That application sought an order that the said Bankruptcy Notice be set aside on the grounds set out and further that the time for compliance with the requirements of the Notice be extended until the determination of the application. In accordance with s.41(6B) of the Bankruptcy Act, a Deputy Registrar in Bankruptcy ordered that upon condition that the Bankruptcy Notice was served on the debtor on 17 June 1986 the time allowed for compliance with the requirements of the Bankruptcy Notice was extended to 26 August 1986. Unfortunately, a copy of this order was not with the Court's papers when the matter was listed before a Deputy Registrar on the morning of 26 August 1986 when the application was listed at 9.30am in accordance with the usual practice. Apparently when the matter was called on before the Deputy Registar there was no appearance by the judgment debtor but Mr Hughes, solicitor of Hughes & Co of Sydney, acting as agent for Baker and Borthwick, Solicitors of Forster, solicitors for the judgment creditor appeared. The judgment debtor's application