Mudge v Hudson Timber & Hardware Limited [2003] FCA 1306

FEDERAL COURT OF AUSTRALIA

Mudge v Hudson Timber & Hardware Limited [2003] FCA 1306 PRACTICE AND PROCEDURE – application of extension of time to file and serve Notice of Appeal – application sought on ground that important evidence rejected by Magistrate – extent of delay minor – no prejudice claimed – application granted BANKRUPTCY – bankruptcy notice – creditor's petition – inconsistent evidence of service Bankruptcy Act 1966 (Cth) RONALD ANTHONY MUDGE v HUDSON TIMBER & HARDWARE LIMITED N 869 of 2003 TAMBERLIN J SYDNEY 14 NOVEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 869 OF 2003

BETWEEN: RONALD ANTHONY MUDGE

APPLICANT

AND: HUDSON TIMBER & HARDWARE LIMITED

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 14 NOVEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The applicant be granted an extension of time for filing the proposed Notice of Appeal until the expiry of seven days from this Order. 2. The respondent pay the costs of the applicant on the application for the extension of time to appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 869 OF 2003

BETWEEN: RONALD ANTHONY MUDGE

APPLICANT

AND: HUDSON TIMBER & HARDWARE LIMITED

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 14 NOVEMBER 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This application, filed on 21 July 2003, seeks an extension of time to file and serve a Notice of Appeal from a decision of a Federal Magistrate given on 17 June 2003. The extension of time is sought because a Notice of Appeal was not filed and served within the time limit, and exceeded the time limit by three days. The learned Magistrate decided in favour of the respondent that the Bankruptcy Notice and Creditor's Petition had been duly served on the applicant. The extension is sought on the ground that the Magistrate rejected important evidence in the form of a solicitor's affidavit, which is said to corroborate his case that the bankruptcy had not been properly served. 2 On 17 June 2003, the Magistrate made a Sequestration Order against the estate of the applicant and ordered the applicant's creditor's costs be paid in accordance with the Bankruptcy Act 1966 (Cth) ("the Act").