Bates v Bechara - [2016] FCCA 3489

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATES v BECHARA

[2016] FCCA 3489

Catchwords:
BANKRUPTCY – Creditor’s petition – sequestration order made by the Registrar.

PRACTICE & PROCEDURE – Application in a Case to set aside orders made the Registrar – dismissal for non-appearance and lack of due diligence in the prosecution of the Application in a Case – consideration of factors – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) rr.4.05, 4.08, 13.03A, 13.03B, 13.03C

Applicant:

PHILIP BATES

Respondent:

MARIA BECHARA

File Number:

SYG 821 of 2016

Judgment of:

Judge Nicholls

Hearing date:

8 December 2016

Date of Last Submission:

8 December 2016

Delivered at:

Sydney

Delivered on:

8 December 2016

REPRESENTATION

Counsel for the Applicant:

Philip Bates

Solicitors for the Applicant:

Bannister Law

Respondent:

No appearance

ORDERS

The interim application made on 25 July 2016 is dismissed for

non-appearance pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
The interim application made on 25 July 2016 is also dismissed pursuant to Rule 13.03B(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant debtor (Ms Bechara, the respondent in the substantive proceedings) pay the respondent creditor’s (the applicant in the substantive proceedings) costs set in the amount of $3724.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 821 of 2016

PHILIP BATES

Applicant

And

MARIA BECHARA

Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

I have set down for hearing before me today an application made by Ms Maria Bechara on 25 July 2016. Ms Bechara asks that an order made by a Registrar of the Court on 5 July 2016 sequestering her estate, be set aside. Further, she asks that the creditor’s petition dated 7 April 2016 (as amended) filed in these proceedings and the process that gave rise to the Registrar’s order, also be dismissed.
Ms Bechara has not appeared in Court today and no one has appeared on her behalf. In this light, the petitioning creditor, Mr Philip Bates, requests that the matter should proceed in her absence as she has had reasonable notice of the Court event today, and she has not provided a satisfactory explanation for her non-appearance (see further below). Mr Bates also submits that the application made by Ms Bechara on 25 July 2016 should be dismissed due to her non-appearance in Court today, and on the basis that she has not conducted her application with due diligence.
The matters in dispute between Mr Bates and Ms Bechara have some history before this Court. The relevant background to this matter which gives rise to the orders I make today is as follows.
On 7 April 2016, Mr Bates filed a creditor’s petition ultimately seeking that a sequestration order be made against the estate of Ms Bechara. This was supported by the affidavit of Anne Ruth Finnerty, solicitor, of 7 April 2016. The creditor’s petition relied on judgment debts in the amount of $127,936.91 ordered against Ms Bechara in various New South Wales State Court proceedings, plus interest.
On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bates v Bechara

Details

AGLC: Bates v Bechara [2016] FCCA 3489
Case: [2016] FCCA 3489
Decision Date: 8 December 2016

CaseChat Overview and Summary

Bates v Bechara concerned an application to set aside a sequestration order made by the Registrar. The applicant, Bates, sought to have the sequestration order, which had been made on the petition of the respondent, Bechara, discharged.

The primary legal issue before the Court was whether the application to set aside the sequestration order should be dismissed due to the applicant's non-appearance and a perceived lack of due diligence in prosecuting the application. The Court was required to consider the relevant factors in determining whether to grant or refuse such an application, particularly in circumstances where the applicant had failed to appear and demonstrate sufficient progress.

Judge Nicholls dismissed the application, finding that the applicant had not shown due diligence in pursuing the application to set aside the sequestration order. The Court considered the applicant's conduct and the lack of progress in the proceedings, ultimately concluding that the application should be dismissed on these grounds.

Orders