JUDGMENT No. Daz BO, CATCHWORDS BANKRUPTCY - time limit for election by trustee under s.60 expired - election by trustee to proceed with action 3 days late - application by trustee for an extension of time to give notice of election. Bankruptcy Act 1966, ss.33, 60 Re: Ivan Vescovi & Anor Ex parte: Desmond William Knight Qld E1487 of 1987 PINCUS J. BRISBANE 9 MARCH 1988 IN THE FEDERAL COURT OF AUSTRALIA ) GENERAL DIVISION ~ QLD E1487 of 1987 BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ) RE: IVAN VESCOVI (Bankrupt) and DEBRA MARIE VESCOVI (Bankrupt) Debtors EX PARTE: DESMOND WILLIAM KNIGHT as Trustee of the Estates of IVAN VESCOVI (Bankrupt) and DEBRA MARIE VESCOVI (Bankrupt) Applicant MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS Jd. DATE OF ORDER: 9 MARCH 1988 WHERE MADE: BRISBNAE THE COURT ORDERS THAT: 1. the time for making the election mentioned in s.60(2) of the Bankruptcy Act 1966 1n respect of the action mentioned in the papers be extended to 15 January 1988; and 2. the costs be reserved pending the outcome of the District Court proceedings. NOTE: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION ) QLD E1487 of 1987 - BANKRUPTCY DISTRICT OF THE SOUTHERN ) DISTRICT OF THE STATE OF QUEENSLAND ~ RE: IVAN VESCOVI (Bankrupt) and DEBRA MARIE VESCOVI (Bankrupt) Debtors EX PARTE: DESMOND WILLIAM KNIGHT as Trustee of the Estates of IVAN VESCOVI (Bankrupt) and DEBRA MARIE VESCOVI (Bankrupt) Applicant PINCUS J. 9 MARCH 1988 REASONS FOR JUDGMENT This 1s an application by the trustee of the estates of two bankcupts for an extension of time to give a notice of election under s.60 of the Bankruptcy Act 1966. The sequence of events appearing from the material and from information I was given from the bar table was as follows: 10.12.87 Sequestration order; applicant becomes trustee. 15.12.87 Millard and others (the respondents to this application) give notice to the applicant under s.60(3). 16.12.87 Applicant's representative enquires of respondents' solicitor what the action is all about and discusses possibility of settlement. 18.12.87 District Court callover: case set down for hearing on 28 and 29 January 1988. 12. 1.88 Last day (under s.60(3)) for electing to prosecute action. 15. 1.88 Trustee elects. Section 60(2) & (3) read as follows: "(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him by a defendant or other party to the action, he shall be deemed to have abandoned the action." It is unnecessary to discuss the nature of the action in question and enough to mention that the trustee says he 15 advised that he has good prospects of success and that the claim in the action is the only substantial asset inthe estates of the bankrupts. Mr Matthews, for the applicant, says there is power under s.33(1)(c) to extend time. The provision reads as follows: "The Court may - (c) extend before its expiration or, if this Act does not expressly provide to the contrary, after its expiration, any time limited by this Act, or any time fixed by the Court or the Registrar under this Act (other than the time fixed for compliance with the requirements of a bankruptcy notice), for doing an act or thing or abridge any such time." It seems plain enough that if the time can be extended, 1t should be. Notice was given only three days late and the conversation of 16 December would have been likely to make the respondents' solicitors aware that the trustee was interested in the matter. Mr Robb contended, however, that once the trustee 15 "deemed to have abandoned the action" under s.60(3), nothing in s.33(1)(c) 1S strong enough to undo the abandonment. Mr Robb relied upon a line of authority to the effect that once an act of bankruptcy has been committed, time for compliance with the requirements of the bankruptcy notice cannot be extended; those cases are not of any relevance, presently, on the precise point they decided, because of s.41(6A) (inserted in 1980) as construed by the Full Court in Streimer v. Tamas (1981) 37 A.L.R. 211. However, it was argued that their principle applies by analogy. Were the matter free from authority, this might be thought a point of some difficulty. Obviously, mot all times mentioned in the Act are intended to be subject to extension: a distinction might rationally be drawn between time provisions which attach a specific consequence to effluxion of the time stated and those which do not. However, in Re Faulkner; Ex parte Official Receiver (1981) 52 F.L.R. 109, the precise question was decided by Lockhart J. ina way favourable to the applicant: see pp.112 and 113. That decision was treated as correct by Shepherdson J. in Holmes v. Goodyear Tyre & Rubber Co. (Aust.) Ltd (1984) 55 A.L.R. 594 at p.598 and by Burchett J. in Re Collins; Ex parte Official Trustee in Bankruptcy and Bracher (1986) 65 A.L.R. 338 at p.342. While I accept that the view propounded by Mr Robb is reasonably open, it 15 Clear that I should follow these authorities. There will be an order that the time for making the election mentioned in s.60(2) ain respect of the action mentioned in the papers be extended to 15 January 1988. The question of costs poses some difficulty. I think the applicant should have them if he wins the District Court case. Therefore, to await the outcome of those proceedings, costs will be reserved. . 1 certify that this and the 3 preceding pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus Arrgelar Suton 'Associate Dated 9 March 1999