State Bank of New South Wales Limited v Gomez [2002] FCA 1476

FEDERAL COURT OF AUSTRALIA

State Bank of New South Wales Limited v Gomez [2002] FCA 1476 BANKRUPTCY – motion by petitioning creditor to extend time for compliance with bankruptcy notice – whether Court should exercise discretion to extend time – no prejudice to respondent debtor – attempt to do indirectly that which is forbidden directly BANKRUPTCY – motion by petitioning creditor for declaration that act of bankruptcy occurred when Full Court dismissed appeal from decision refusing to set aside bankruptcy notice – construction of Bankruptcy Act 1966 (Cth) s 41(7) - whether act of bankruptcy occurred on day of decision of primary judge or day of decision of Full Court – whether authorities plainly wrong Bankruptcy Act 1966 (Cth) ss 40(1), 41(7), 44(1)

Ebert v Union Trustee Company of Australia Limited (1961) 105 CLR 327 followed Johnstone v Guss [1998] FCA 117 followed Elkateb v Lawindi [2000] FCA 1939 followed K Mart Australia Limited v Commissioner of Taxation (unreported, Beaumont J, 31 August 1995) cited Vista Commercial Construction Pty Ltd v Deputy Commissioner of Taxation (1997) 79 FCR 288 referred to Re Moss; Ex parte Tyaraf Pty Limited (unreported, Morling J, 23 August 1985) cited Re Halstead; Ex parte Westpac Banking Corporation (No 2) (1991) 32 FCR 394 cited Re Howarth; Ex parte Mortgage Acceptance Nominees Limited (1993) 43 FCR 587 cited Caltex Oil (Australia) Proprietary Limited v Best (1990) 170 CLR 516 cited STATE BANK OF NEW SOUTH WALES LIMITED (ACN 003 963 228) v JOSEPH WENCESLAUS GOMEZ N 7154 of 2002 BRANSON J 28 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 7154 of 2002

BETWEEN: STATE BANK OF NEW SOUTH WALES LIMITED (ACN 003 963 228)

APPLICANT

AND: JOSEPH WENCESLAUS GOMEZ

RESPONDENT