Cheng v Zhang [2020] FCA 1859

Federal Court of Australia

Cheng v Zhang [2020] FCA 1859 Appeal from: Zhang v Cheng (No 2) [2020] FCCA 507

File number: NSD 333 of 2020

Judgment of: STEWART J

Date of judgment: 23 December 2020

Catchwords: BANKRUPTCY – creditor's petition – sequestration order – whether power to extend life of creditor's petition under s 52(5) of the Bankruptcy Act 1966 (Cth) can be exercised retrospectively by invoking the slip rule – whether just and equitable to extend time – whether making of a sequestration order within the term of currency of the petition is a thing required or allowed to be done for the purposes of s 36(2) of the Acts Interpretation Act 1901 (Cth) – whether sequestration order could be made after expiry of the period of 24 months from date of presentation of the creditor's petition when the last day fell on a Saturday despite s 52(4) of the Bankruptcy Act 1966 (Cth) – appeal dismissed PRACTICE AND PROCEDURE – slip rule – whether use of rule to correct an accidental slip or omission – whether discretion to extend time before the creditor's petition would lapse could be exercised in only one way – where an order made under the slip rule invalid – whether power can be exercised on appeal to correct orders made by the Court below

Legislation: Acts Interpretation Act 1901 (Cth) s 36 Bankruptcy Act 1966 (Cth) ss 27, 43, 52(4), 52(5) and 306 Federal Court of Australia Act 1976 (Cth) s 28(1) Federal Circuit Court Rules 2001 (Cth) rr 16.05(2)(d), 16.05(2)(h)

Cases cited: Emanuele v Australian Securities Commission [1997] HCA 20; 188 CLR 114 Endresz v Commonwealth [2019] FCAFC 197; 273 FCR 286 Flint v Richard Busutill & Co Pty Ltd [2013] FCAFC 131; 216 FCR 375 Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 Roskell v Snelgrove [2008] FCA 427; 246 ALR 175 Wren v Mahony [1972] HCA 5; 126 CLR 212