The High Court refused an Official Assignee’s application to extend the period during which an interest in bankrupt J.H.’s family home would remain vested in the Official Assignee for creditors’ benefit.
Mr Justice Brian O’Moore gave judgment on 28 July 2022 after informing the parties of his decision on 31 March 2022. The motion sought a 36-month extension under section 85(3D) of the Bankruptcy Act 1988, as amended, and directions about service of any extension order. The court did not grant either request.
J.H. was adjudicated bankrupt on 29 February 2016. A 2019 order extended the date on which the property was due to re-vest in him to 1 April 2022. The Official Assignee brought the new motion shortly before that date. Its evidence described difficulties administering the estate, including alleged non-cooperation, complications with title and judgment mortgages, and threats and intimidation connected with efforts to deal with estate properties. The judge described the situation as troubling but said the affidavit lacked detail.
The judge concluded that an application under section 85(3D) had to be made before the third anniversary of the adjudication. The present application was made after that deadline. The Official Assignee’s counsel later argued that the motion should instead be treated as a request under other legal provisions to vary the 2019 order. The judge said that was not the relief specified in the notice of motion, presented when the motion was first moved, or precisely sought at the earlier hearing that day.
The court held that it would decide the motion in the terms in which it had been drafted and advanced, given that J.H.’s interest in the home was at stake. No application to extend the time for bringing the section 85(3D) motion had been made. The judge refused the application as issued.
The ruling did not decide whether a differently framed application to vary the 2019 order could succeed on appropriate evidence. The judge said such an order might be possible, but it was not the order sought in this motion. The decision addressed the application’s timing and form of relief; it did not determine the underlying ownership dispute or grant an extension over the home.