Re McLean Ex parte Biztole Developments Pty Ltd [1995] FCA 710

IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF VICTORIA No VN 1576/94 Re: HELEN MURIEL McLEAN Judgment Debtor Ex parte: BIZTOLE DEVELOPMENTS PTY LTD (Receiver and Manager appointed) Judgment Creditor Coram: Olney J Place: Melbourne Date: 5 September 1995

MINUTE OF ORDER The court is not satisfied that the judgment debtor has a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt that she could not have set up in the proceeding in which the judgment was obtained AND ORDERS THAT: 1. The judgment debtor's application be dismissed. 2. The judgment debtor pay the judgment creditor's costs including any reserved costs. 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 VICTORIA No VN 3191/93 Re: HELEN MURIEL McLEAN Judgment Debtor Ex parte: BIZTOLE DEVELOPMENTS PTY LTD (Receiver and Manager appointed) Judgment Creditor

No VN 1576/94 Re: HELEN MURIEL McLEAN Judgment Debtor Ex parte: BIZTOLE DEVELOPMENTS PTY LTD (Receiver and Manager appointed) Judgment Creditor Coram: Olney J Place: Melbourne Date: 5 September 1995

REASONS FOR JUDGMENT BACKGROUND The judgment creditor has caused two bankruptcy notices to be served on the judgment debtor. The first (in proceeding VN 3191/93) was issued on 18 January 1994 and the second (in proceeding VN 1576/94) on 7 July 1994. Each makes demand for the payment of $805,716.05 being the amount of a judgment of the Supreme Court of Victoria obtained on 25 November 1993. The form of the second notice varies from that of the first only to the extent that it identifies by reference to its number the proceeding in which the judgment was obtained.

The judgment debtor has, in respect of each notice, filed an affidavit of the type contemplated by s 41(7) of the Bankruptcy Act and has also made application to set the notice aside. The application to set aside the first bankruptcy notice raised several grounds, including grounds relating to the form of the notice. That matter was initially resolved in the judgment debtor's favour on 4 July 1994 when Northrop J set the notice aside. On that occasion his Honour did not embark upon a consideration of the other grounds relied upon by the judgment debtor. However, on 17 March 1995 the Full Court (Black CJ, O'Loughlin and Heerey JJ) upheld an appeal against Northrop J's decision, set aside the orders made on 4 July 1994 and remitted the questions still to be decided to a single judge for determination. The second bankruptcy notice was issued some 3 days after the decision setting aside the first notice. The slight variation in form was no doubt intended to overcome the objection which had been successfully raised before Northrop J. As a result of the Full Court's decision, nothing now turns on the difference in the form of the notices. TIME FOR COMPLIANCE The first bankruptcy notice was served on 23 April 1994. It required the judgment debtor to comply with its demand within 14 days of service. The last day for compliance was therefore 7 May 1994 which was a Saturday. By operation of s 36(2) of the Acts Interpretation Act 1901 (Cth) the time for compliance was extended to Monday 9 May 1994. The application to set aside the notice was filed on 6 May 1994 and on 9 May 1994 a Registrar extended the time for compliance pursuant to s 41(6B) of the Bankruptcy Act to and including 31 May 1994 or further order. On 27 May 1994 the judgment debtor filed an affidavit of the type contemplated by s 41(7) thus further extending the time for compliance until and including the day on which this decision is given. In the meantime an order was made pursuant to s 41(6B) extending the time for compliance first to and including 22 June 1994 and on that day, a further order was made by a Judge extending time until midnight on 4 July 1994 or until further order. When giving judgment on the judgment creditor's appeal on 17 March 1995 the Full Court reserved its decision on the question of extension of time pursuant to ss 41(6A) and 41(7). On 5 May 1995 the Full Court rejected the judgment debtor's application for extension of time under s 41(6A) and held that the time for compliance with the bankruptcy notice had been automatically extended under s 41(7). A similar situation applies in relation to the second bankruptcy notice. By operation of orders made pursuant to s 41(6B) and the provisions of s 41(7) the time for compliance has been extended to and including the date of this decision.