Bates v Bechara (No 2) - [2017] FCCA 985

FEDERAL CIRCUIT COURT OF AUSTRALIA

BATES v BECHARA (No.2)

[2017] FCCA 985

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

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:

Bates v Bechara [2016] FCCA 3489

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,…

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 (No 2)

Details

AGLC: Bates v Bechara (No 2) [2017] FCCA 985
Case: [2017] FCCA 985
Decision Date: 3 March 2017

CaseChat Overview and Summary

Bates v Bechara (No 2) concerned an application to reinstate a creditor's petition for sequestration, which had previously been dismissed by the Registrar. The applicant, Bates, sought to have the sequestration order reinstated, while the respondent, Bechara, opposed this application. The matter came before Judge Nicholls.

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