Jeans v Commonwealth Bank of Australia [2004] FCA 841

FEDERAL COURT OF AUSTRALIA

Jeans v Commonwealth Bank of Australia [2004] FCA 841

BANKRUPTCY – substantial judgment entered in favour of creditor against debtor on guarantee – pending application to High Court for leave to appeal – bankruptcy notice given by judgment creditor to judgment debtor – application by judgment debtor for extension of time to comply with bankruptcy notice until special leave application determined – consent of judgment debtor to dismissal of application for extension of time in return for undertaking of judgment creditor not to present petition in bankruptcy for sequestration order against judgment debtor until determination of application for leave to appeal to High Court and until determination of any subsequent appeal of judgment debtor's to High Court if special leave be granted – hearing of appeal by High Court of application for special leave to appeal listed for hearing on date subsequent to expiration of time for presentation of judgment creditor of bankruptcy petition based on non-compliance with bankruptcy notice – application by judgment creditor to be released from undertaking not to proceed with bankruptcy petition on ground of non-compliance with bankruptcy notice by reason of change of circumstances – application opposed in reliance upon that undertaking – unilateral mistake of judgment creditor at time of giving undertaking as to anticipated time of hearing of special leave application – application of judgment creditor to be released from undertaking on ground of mistaken belief as to prospective hearing date of hearing by High Court special leave application of judgment debtor – application granted in principle

Bankruptcy Act 1966 (Cth) s 41(6A)

Jeans v Commonwealth Bank of Australia Ltd (2004) 204 ALR 327 Ahern v Deputy Commissioner of Taxation (Qld) (1987-1988) 76 ALR 137 Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 Mullins v Howell (1879) 11 ChD 763, and Cutler v Wandsworth Stadium (1945) 1 All ER 103 Cutler v Wandsworth Stadium (1945) 1 All ER 103 JOHN ANTHONY JEANS v COMMONWEALTH BANK OF AUSTRALIA N 7372 OF 2003 CONTI J 29 JUNE 2004 SYDNEY