Abignano; in the matter of Abignano v Wenkart

This case involved an application by the respondent, Abignano, to adjourn the hearing of a creditor’s petition brought by Wenkart. The matter came before the court following a long-standing and contentious dispute between the parties, which resulted in a judgment debt of over $1.3 million. The debtor argued that the petition had formal defects which were incurable and that the application to amend the petition should not be granted. The court had previously granted leave to amend the petition on the condition that the hearing of the substantive matter would be adjourned pending the outcome of an application for special leave to appeal to the High Court.

The primary legal issue the court had to decide was whether the debtor’s application to adjourn the hearing of the creditor’s petition should be granted. The court had to consider the principles governing applications of this kind, including its general discretion to adjourn the hearing of a petition, and whether it was appropriate to view favourably an adjournment to enable creditors to consider a fair and bona fide Part X proposal.

The court dismissed the debtor’s application to adjourn the hearing of the creditor’s petition. The court held that it would not grant the adjournment as the debtor had not established that it was reasonably and fairly possible to avoid the serious step of inflicting the status of bankruptcy on a person. The court also noted that the debtor had not demonstrated that the adjournment would be in the interests of justice. The court ordered that the respondent pay the applicants' costs.