The Court of Appeal has refused Damien Brennan’s application to extend the time for appealing four High Court orders relating to his bankruptcy, including the order adjudicating him bankrupt and a later interim order keeping the bankruptcy in force pending further proceedings.
The application concerned orders made between June 2018 and March 2020: two permitting substituted service of bankruptcy documents, the March 2019 adjudication, and a March 2020 order under section 85A(3) of the Bankruptcy Act 1988. That last order said the bankruptcy would not stand discharged while the Official Assignee’s motion to extend it was being determined. The Court of Appeal did not decide the underlying motion to extend the bankruptcy.
The court found no basis to allow late appeals against the substituted-service and adjudication orders. Brennan argued that the papers had been sent to an incorrect address and that illness had prevented him from pursuing an appeal. The judgment said the evidence did not establish that the address errors were material, noting that the address or close variants appeared in documents provided by Brennan or people acting for him, and that some correspondence sent there was received. The court also found that the evidence was consistent with Brennan learning of the bankruptcy order before July 2019, but did not clearly establish when or how he learned of it. It said the medical evidence did not show that he was unable to understand the proceedings or instruct solicitors.
The court accepted that Brennan had an arguable point about whether the interim extension order could be made after the first anniversary of his adjudication. He argued that his bankruptcy had automatically discharged on 3 March 2020, before the High Court made the interim order on 16 March. The Court of Appeal said there was a credible counterargument that issuing and serving the Official Assignee’s motion before the anniversary could satisfy the statutory deadline. It stressed that it was not deciding that legal issue.
Despite finding the point arguable, the court refused to extend time to appeal the interim order, citing the delay, Brennan’s knowledge that an extension application was planned, and the absence of evidence that he had not been served with that application. It also noted that he continued to engage with the bankruptcy process. The judgment said it remained open to him to oppose the Official Assignee’s substantive extension application, including by demonstrating cooperation.
The application was refused. The court gave its preliminary view that costs should follow against Brennan and said he could notify the Court of Appeal office within 14 days if he wished to argue otherwise. The other two judges agreed with the proposed order and reasons.