Wily v Wood [2008] FCA 208

FEDERAL COURT OF AUSTRALIA

Wily v Wood [2008] FCA 208

ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED v LINDA WOOD NSD 2340 OF 2007

COWDROY J

3 MARCH 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2340 OF 2007

BETWEEN: ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED

Applicant

AND: LINDA WOOD

Respondent

JUDGE: COWDROY J DATE OF ORDER: 3 MARCH 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The time in which to file and serve the Notice of Appeal be extended to 17 March 2008. 2. The Applicant pay the costs of the Respondent pursuant to O 62 r 23 of the Federal Court Rules.

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 NSD 2340 OF 2007

BETWEEN: ANDREW HUGH JENNER WILY LIQUIDATOR OF KITCHEN CENTRAL PTY LIMITED

Applicant

AND: LINDA WOOD

Respondent

JUDGE: COWDROY J

DATE: 3 MARCH 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, Mr Wily ('the liquidator'), as liquidator of Kitchen Central Pty Limited ('the company') applies for an extension of time pursuant to O 52 r 15(2) of the Federal Court Rules ('the Rules') to file and serve a notice of appeal from the decision of Federal Magistrate Housego delivered on 31 October 2007. By such decision her Honour set aside Bankruptcy Notice No. NN 2151 of 2007 ('the bankruptcy notice') which was served on the respondent, Ms Wood, on 6 June 2007. The liquidator has applied for his application to be considered without an oral hearing pursuant to O 52 r 4 of the Rules and Ms Wood has not objected to such a course.

FACTS 2 The bankruptcy notice was served upon Ms Wood alleging that she is indebted to the company. Ms Wood applied to the Federal Magistrates Court of Australia to have the bankruptcy notice set aside on the ground that she had a set-off against the company as provided in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). The only issue for determination before Housego FM was whether there was sufficient mutuality of the two respective debts for the purposes of establishing set-off as a basis to set aside the bankruptcy notice. 3 Housego FM was required to determine whether the intervening liquidation of the company which occurred on 21 March 2007 prohibited a finding of mutuality. Housego FM rejected the submission of the liquidator that since the debt owed by the company to Ms Wood was a company debt and the debt owed by Ms Wood was owed to him as the liquidator of the company, the claims were not in the same right. Housego FM instead found that the debt was owed to the liquidator by Ms Wood in his capacity as liquidator. Relying on Stec v Orfanos [1999] FCA 457 at [24] her Honour found that on the basis of set-off there was sufficient mutuality between the debts for the bankruptcy notice to be set aside. Housego FM granted the application and set aside the bankruptcy notice on 31 October 2007. 4 Order 52 Rule 15 of the Rules relevantly provides: (1) The notice of appeal shall be filed and served: (a) within 21 days after: i. the date when the judgment appealed from was pronounced; ii. the date when leave to appeal was granted; or iii. any later date fixed for that purpose by the court appealed from; or (b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph. (2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 5 The 21 day period expired on 21 November 2007. The application for extension of time was mistakenly filed in the Federal Magistrates Court of Australia on 22 November 2007 instead of the Federal Court of Australia. It was ultimately filed in this Court on 27 November 2007. Accordingly, the application for an extension of time was filed six days outside the time allowed for filing of a notice of appeal pursuant to O 52 r 15(1) of the Rules. 6 The affidavit provided in support of the application for extension of time as required by O 52 r 15(3)(c) of the Rules explains that the reason for the delay was an oversight on the part of the liquidator's legal representatives. The affidavit states that the applicant's solicitor received the judgment of Housego FM on 7 November 2007 and promptly briefed counsel to advise whether such decision should be appealed. The counsel did not respond. On 21 November 2007 an inquiry was made of him, and on 22 November the question of the time in which the appeal was to be filed was first raised by counsel. The applicant immediately sought to file the application for leave to extend time in which to appeal.