FEDERAL CIRCUIT COURT OF AUSTRALIA
| BATES v BECHARA (No.2) | [2017] FCCA 985 |
| Catchwords: PRACTICE & PROCEDURE – Application in a Case to reinstate – previous Application in a Case dismissed for non-appearance and lack of due diligence in prosecution of the application – consideration of factors – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.16.05, 13.03B, 13.03B |
| Cases cited: |
| Applicant: | PHILIP BATES |
| Respondent: | MARIA BECHARA |
| File Number: | SYG 821 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 3 March 2017 |
| Date of Last Submission: | 3 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 3 March 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Bannister Law |
| Solicitors for the Respondent: | State Lawyers |
ORDERS
The Application in a Case made on 5 January 2017 is dismissed.
The applicant pay the respondent’s costs set in the amount of $1200.
| 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 before me today an Application in a Case (“AIC”) made by Ms Maria Bechara (“the applicant” in the AIC) [a reference in the orders to the applicant is a reference to Ms Bechara] on 5 January 2017. She seeks orders that, in effect, request reinstatement of an application made to this Court on 25 July 2016. That application sought to have set aside a sequestration order made by a Registrar of the Court on 5 July 2016, and dismissal of a creditor’s petition. Mr Philip Bates (“the respondent” in the AIC) was the petitioning creditor.
The “substantive” application made on 25 July 2016 was ultimately set down for hearing on 8 December 2016. This was preceded by two occasions where adjournments were granted on two Court events, 17 August 2016 and 27 September 2016. On 8 December 2016, there was no appearance by, or on behalf of, Ms Bechara. I dismissed that application pursuant to two Rules of this Court (Bates v Bechara [2016] FCCA 3489).
One was r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”). I was satisfied that Ms Bechara had not attended, and no one had attended on her behalf, and was further satisfied that she had had reasonable notice of the Court event. Notwithstanding that, Ms Bechara chose, through her then solicitors to send an ex parte email to the Court on 29 November 2016, setting out why she was not going to attend the Court event on 8 December 2016. I was not satisfied that that was a reasonable or satisfactory explanation for her
non-appearance. I was also satisfied that the application should be dismissed pursuant to r.13.03B(1)(a) of the FCC Rules for breach of the Court’s orders and failure to prosecute the application with due diligence.
Since that time, and as set out above, Ms Bechara filed the AIC on 5 January 2017. On 22 February 2017,…
Continue reading Bates v Bechara (No 2)
Sign in free to access the full text
- AGLC
- Bates v Bechara (No 2) [2017] FCCA 985
- Case
- [2017] FCCA 985
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether to grant the application to reinstate the creditor's petition. This required the court to consider the circumstances surrounding the dismissal of the original application to reinstate, specifically whether the applicant had demonstrated due diligence in prosecuting that prior application, which had been dismissed due to non-appearance and a lack of diligence.
Judge Nicholls dismissed the application to reinstate. The court applied the principles governing the reinstatement of dismissed applications, focusing on the applicant's conduct. The previous dismissal was based on the applicant's failure to appear and a lack of due diligence in pursuing the matter. In the absence of compelling reasons or evidence demonstrating a change in circumstances or a satisfactory explanation for the prior failures, the court found no basis to depart from the earlier decision and reinstate the sequestration order.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.