Case: Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 
Outcome: considered
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 , Lehane J undertook a comprehensive review of the considerations that had been taken into account in other cases involving the exercise of the discretion under s 41(6A) , although, and it almost goes without saying, the considerations to which his Honour referred were conditioned by the facts of the case in respect of which the exercise of his discretion was called for. At 270, Lehane J went on to reason: In my view the considerations to which Sheppard J refers indicate that the principles to be applied where the question is whether a petition should be adjourned or dismissed are not necessarily those which should guide the exercise of the discretion to set aside, or extend time for compliance with, a bankruptcy notice. The commission of an act of bankruptcy is, undoubtedly, a serious matter; it is, however, of a different order of gravity from the change of status brought about by the making of a sequestration order; and there is also to be taken into account the interest of both the judgment creditor and other creditors of the judgment debtor in ensuring that, if ultimately a sequestration order is made, the relevant act of bankruptcy occurs earlier rather than later. In Conway v Jackson at [30], the Full Court said: In exercising the discretion whether or not to extend the time for compliance with a bankruptcy notice, the creditor should not be routinely frustrated from enforcing the judgment by the device of the institution of an appeal. Section 41(6C) , to an extent, recognises that position. Moreover, the date of the commission of the act of bankruptcy is significant to determine the commencement of the bankruptcy if a sequestration order is made: s 115(1) , and so to determining the property of the bankrupt which is divisible amongst the creditors of the bankrupt: s 116(1). It also has significance to the application of ss 118 , 120 , 121 and 122 of the Act. The delay in the commission of the act of bankruptcy, if ultimately the requirements of a bankruptcy notice are not complied with and a sequestration order is made, by an extension of time to comply with a bankruptcy notice may therefore have significant consequences to the creditors of the bankrupt. An extension of time to comply with the requirements of a bankruptcy notice does not, on the other hand, preclude any other judgment creditor from procuring the issue and service of a bankruptcy notice, or from presenting a petition for a sequestration order if some other act of bankruptcy has already been committed. Such considerations, if significant in the particular circumstances, together with other considerations relevant to the circumstances of the particular case, will no doubt be considered by the Court in exercising its discretion under s 41(6A) of the Act: see for example the discussion by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264. However, such considerations are properly left to the Court in exercising its discretion whether to extend time for compliance with the requirements of a bankruptcy notice. Counsel for Mrs Coshott submitted that a further extension of time for compliance with the Bankruptcy Notice should be allowed in terms of the amended order sought in the amended application by reference to the following considerations: (1) The discretion to grant an extension of time for compliance is 'at large': Re Taylor at 379; Byron at 270. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. The thrust of the submission was that the appeal had merit because: (a) There was no basis for the costs assessor to proceed to determine an amount payable by Mrs Coshott but refuse to determine an amount payable by Mr Coshott; (b) the Legal Profession Act does not give a costs assessor any power to, in effect, alter the terms of an assessment that are referred to him or her; (c) the costs assessor acted ultra vires ; (d) the broad brush approach taken by the costs assessor to assessment was not permissible: Cassegrain v CRK Engineering [2008] NSWSC 457 including the passages extracted therein from Kennedy Miller Television Pty Ltd v Lancken (unreported, Supreme Court of New South Wales, August 1999, Sperling J); (e) inadequate reasons are an error of law: Cassegrain at [86]. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse. It is true that there is no stay of the judgment upon which the Bankruptcy Notice is based and no suspension of the costs assessor's determination or decision. But both were sought and refused on jurisdictional grounds: see [4] and [7] above. The contrast with Geard and Byron is clear.