"y ' oe Not for distribution ay S7 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISTON ) QLD. No.1903 of 1986 BANKRUPTCY DISTRICT OF THE SOUTHERN ) ) DISTRICT OF THE STATE OF QUFENSLAND ) EDEL GQUAT OF fj RE: IAN ALEXANDER OUTRIDGE pet an EX PARTE: IAN ALEXANDER OUTRIDGE Napplicant)> QUEENSLAND DRUGGISTS LIMITED (Respondent) SPENDEP J. BRISBANE 1 December, 1986. REASONS FOR JUDGMENT This 1s an application by a debtor, Ian Alexander Outridge, for a number of orders. He seeks:-~ 1. "That the time for compliance with a Bankruptcy Notice issued on the 24th September 1986 be extended. 2. That the Bankruptcy Order (sic) issued on the 24th September 1986 be set aside. 3. That the Judgment Debtor be granted leave to pay the judgment debt by instalments of TEN THOUSAND DOLLARS ($10,000) payable monthly together with interest at the rate of TWELVE per cent (12%) per annum under the provisions of the Common Law Act (sic) 1867-1981 Queensland. 5. That the Judgment Creditor do pay the Judgment Debtors (sic) costs." N On 20 August 1986, Master Weld in the Supreme Court of Queensland in Writ No.2409 of 1986, after a defended application for summary judgment, gave judgment to Queensland Druggists Limited against Mr. Outridge in the sum of §63,169.75, and ordered that Mr. Outridge pay the plaintiff's costs, including reserved costs, to be taxed. A bankruptcy notice in respect of the judament amount of 363,169.75 was filed on 26 September 1986, and Mr. Outridge was served with the bankruptcy notice on 9 October 1986. The bankruptcy notice was a 14 day notice, and therefore the period for compliance with the requirements of the bankruptcy notice expired 14 days after the day of service. It was not until 3 November 1986 that the application to which I have referred was filed in this court. Section 41/{6A) of the Bankruptcy Act 1966 provides:- "Where, before the expiration of the time fixed by the Court or the Registrar for compliance with the requirements of a bankruptcy notice - (a) proceedings to set aside the judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or (b) an application to set aside the bankruptcy notice has been filed with the Registrar, the Court may, subject to sub-section (6C), extend the time for compliance with the bankruptcy notice." In the circumstances of this case, the application was not filed before the expiration of the time fixed by the Registrar for compliance with the requirements of the bankruptcy notice. Therefore it is not competent for me to extend the time for compliance with the bankruptcy notice. Since the various requirements of the bankruptcy notice which are referred to in 41(2) of the Bankruptcy Act 1966 have not been complied with within the time fixed in the bankruptcy notice, an act of bankruptcy has already been committed. Therefore, there is no point in setting aside the bankruptcy notice, unless it be that in some way the issue and service of the bankruptcy notice constitutes an abuse of the process of the court. The question of abuse of process was referred to by the High Court in Rozenbes & Ors. v. Kronhill & Anor. (1956) 95 C.L.R. 407, where the High Court considered the question of extortion in the context of bankruptcy proceedings. In this matter the material indicates that Mr. Outridge has offered, but the creditor has not accepted, that regular payment be made at the rate of $10,000 per month with interest at the rate of 12 per cent per annum. The creditor has accepted various payments in the sum of $10,000 which have been forwarded, but there has not been any agreement, nor has there been any attempt to provide security for any payment by instalments. It seems that there is a dispute as to accountancy fees. Queensland Druggists Limited refers to an accountancy fee of 1.75 per cent per month on any outstanding amounts. Mr. Outridge has hese indicated that he is prepared to pay interest as ordered by the Supreme Court, although there is no reference to any such component for interest in the judgment of Master Weld, where the amount was fixed at $63,169.75, plus costs, including reserve costs, to be taxed. At present, there is no judgment debt in respect of any such interest component either at the rate calculated under the Common Law Practice Act 1867-1981 Queensland or under the contractual rate that may have been applicable to the debtor and the creditor. Independently of a dispute concerning what interest should be paid and, if any, the appropriate rate, Mr. Outridge has indicated that he is in a position to maintain regular monthly payments of $10,900 per month, and he further swears that he 1s able to pay all his debts as they fall due, but chooses to pay this particular debt by instalments. Candidly deposed to by Queensland Druggists Limited is the concern that, in the absence of bankruptcy proceedings, the prospect of it receiving the amount of the judgment debt is slight. These considerations do not amount to extortion, in accordance with the authorities, nor to an abuse of process of the Bankruptcy jurisdiction of this Court and I dismiss the application in all its respects. The creditor may, provided it receives the sum of $10,000 per month, abstain from issuing any creditor's petition on the act of bankruptcy which has already been committed, but that is a matter for the creditor. I dismiss the application filed on 3 November 1986. I think, consistent with the ordinary rule as to costs, the debtor should pay the creditor's costs, to be taxed if not agreed. coy lceriily chrathis avtce 4+ F- . . . ae wile nraceding 2L0%e for