Smith, D.W. [1994] FCA 946

JUDGMENT No. sunt tH

CATCHWORDS

BANKRUPTCY - sequestration order - Judgment debt - validity of

Judgment of Adelaide Magistrates Court

No. SP 313 of 1994

Re: DOUGLAS WILTSHIRE-SMITH

Branson J.

5 December 1994 Adelaide

RECEIVED -8 DEC 1994

(DERAL COURT OF

AUSTRALIA

PRINCIPAL REGISTRY

IN THE FEDERAL COURT OF AUSTRALIA ) ) CT_REG ) ) GENERAL DIVISION ) No. SP 313 of 1994 ) BANKRUPTCY DISTRICT OF THE STATE ) ) QF SOUTH AUSTRALIA ) Re: sw = fe SON fe)

CORAM: Branson J. DATE: 5 December 1994

PLACE: Adelaide

This is a contested application for the making of a

sequestration order against the estate of the debtor.

The judgment creditor obtained a default judgment against the debtor in the Adelaide Magistrates Court in its Civil Division on 25 March 1993. There is nothing to suggest that the

default judgment was not lawfully and properly obtained.

Application was made by the debtor to the Adelaide Magistrates Court to have the judgment set aside. The application was heard and determined by Mr Prescott SM. From what Mr Wiltshire-Smith has told me today all relevant material was apparently placed before Mr Prescott for his consideration. Mr Prescott dismissed the application. No appeal from his

decision was instituted.

-2- The bankruptcy notice relating to the unpaid default judgment was served on the debtor on 11 August 1994. It called for compliance within 14 days, that is on or before 25 August 1994. It was not complied with within that time nor was any application made to this court within that time for an order extending the time for compliance with the bankruptcy notice. An act of bankruptcy was thus committed by the debtor upon the

expiration of the 14 day period.

An application made by the debtor after the expiration of the 14 day period referred to in the bankruptcy notice sought an order setting aside the bankruptcy notice. This application was heard by O'Loughlin J. His Honour did not construe the application as containing an application for an extension of time within which to comply with the bankruptcy notice. However, he indicated that if such an application had been made he did not regard it as appropriate to consider it. He considered the application to set aside the bankruptcy notice.