Bazzo v Bank of Queensland

[2017] FCCA 1026

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAZZO v BANK OF QUEENSLAND [2017] FCCA 1026

Catchwords:
BANKRUPTCY – application to set aside bankruptcy notice.

PRACTICE AND PROCEDURE – Adjournment – amendment of application.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 33, 40(1)(g), 41(6A) and (7)

Cases cited:

Palanappian v Westpac Banking Corporation [2016] FCA 1494

Applicant: TINA MICHELLE BAZZO

Respondent: BANK OF QUEENSLAND

File Number: PEG 598 of 2015

Judgment of: Judge Lucev

Hearing date: 17 May 2017

Date of Last Submission: 17 May 2017

Delivered at: Perth

Delivered on: 19 May 2017

REPRESENTATION

Counsel for the Applicant: Dr JT Schoombee and Mr AR Rumsley

Solicitor for the Applicant: Alan Rumsley

Counsel for the Respondent: Mr JG Abberton

Solicitors for the Respondent: Lavan

ORDERS

1. That the Applicant be granted leave to amend her application in terms of the Amended Application dated 29 March 2017.

2. That to the extent necessary, the Applicant be given leave to rely on the affidavits of Alan Phillip Rumsley dated 29 March 2017 and 15 May 2017.

3. That there be liberty to apply on 48 hours written notice, including for a variation or discharge of these orders.

4. That the time fixed for compliance with the Bankruptcy Notice No. 186837 issued to, and served on, the Applicant Tina Michelle Bazzo, dated 17 December 2015 be extended until further order pursuant s.41(7) of the Bankruptcy Act 1966 (Cth).

5. That the matter be listed for hearing on a date to be fixed in 2018.

6. That the matter be listed for a further directions hearing on a date to be fixed before 31 August 2017.

7. That costs be reserved.

8. That reasons for Judgment in relation to these orders be published from Chambers at a later date.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 598 of 2015

TINA MICHELLE BAZZO

Applicant

And

BANK OF QUEENSLAND

Respondent

REASONS FOR JUDGMENT

Orders made on 17 May 2017

1. At the completion of the hearing on 17 May 2017 the Court made the orders to the following effect:

   a)that the Applicant be granted leave to amend her application in terms of the Amended Application dated 29 March 2017;

   b)that to the extent necessary, the Applicant be given leave to rely on the affidavits of Alan Phillip Rumsley dated 29 March 2017 and 15 May 2017;

   c)that there be liberty to apply on 48 hours written notice, including for a variation or discharge of these orders;

   d)that the time fixed for compliance with the Bankruptcy Notice No. 186837 issued to, and served on, the Applicant Tina Michelle Bazzo, dated 17 December 2015 be extended until further order pursuant s.41(7) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”);

   e)that the matter be listed for hearing on a date to be fixed in 2018;

   f)that the matter be listed for a further directions hearing on a date to be fixed before 31 August 2017;

   g)that costs be reserved; and

   h)that Reasons for Judgment in relation to these orders be published from Chambers at a later date.

2. What follows are the Court’s Reasons for Judgment.

Issues

1. Two issues were before the Court at the outset of the hearing: firstly, the applicant’s application to amend the substantive application, and, secondly, the applicant’s application for an adjournment of the hearing of the substantive application. For present purposes it is convenient to deal with those issues in reverse order.

Applicant’s application for an adjournment of the hearing of the substantive application

1. The applicant sought to adjourn the hearing of the substantive application on the basis, firstly, of the forthcoming hearing of an appeal  before the Full Court of the Federal Court (“Full Court Appeal”) against the judgment in Palanappian v Westpac Banking Corporation [2016] FCA 1494, and, secondly, developments in arguably related proceedings in the Supreme Court of Western Australia (“Related Proceedings”).

2. Both parties appeared to assume that they might have a hearing of the substantive application in this Court within a matter of weeks. Shortly after the commencement of the hearing the Court informed the parties that the earliest date available for a bankruptcy hearing in the Perth Registry of this Court would be in February 2018. Those circumstances effectively rendered otiose the application to adjourn the hearing of the substantive application, as, firstly, the Full Court Appeal was to be heard next week and judgment would likely be delivered before February 2018, but if it was not further submissions could be made after the delivery of that judgment, and, secondly, the Related Proceedings would be further advanced. The parties consequently agreed that it would be better if the substantive application were to be listed as soon as possible in early 2018, and that there be a further directions hearing in relation to appropriate programming orders.

Applicant’s application to amend the application

1. The applicant sought to make amendments to the substantive application in terms of a Minute of Amended Application which had been put before the Court at an earlier hearing on 31March 2017 (“Minute”).

2. The Minute sought to amend the sections of the Bankruptcy Act under which the substantive application was said to be made to include ss.33 and 41 (7) of the Bankruptcy Act in addition to the previously cited ss. 30, 40(1)(g) and 41(6A) thereof.

3. The amendment to include s.33 of the Bankruptcy Act ought not to have excited any controversy, it being the legislative provision giving the Court power, in bankruptcy proceedings, to adjourn proceedings and to amend any written process, both of which the applicant seeks, or sought (in the case of the adjournment of the hearing of the substantive application)  to do. The amendment is therefore entirely appropriate and ought to be granted.

4. The amendment to include reference to s.41(7) of the Bankruptcy Act has to be read in conjunction with the amendment to the further and alternative proposed order 2 sought in the Minute which seeks to have time extended for compliance with the Bankruptcy Notice dated 17 December 2015 until the determination of these proceedings (in lieu of part of the Related Proceedings), whether pursuant to s.41(6A)(b) of the Bankruptcy Act (sought to be amended from s.41(6A) of the Bankruptcy Act) or s.41(7) of the Bankruptcy Act. The complexity of the arguments as to the nature and interrelationship of the various applications in this Court and in the Related Proceedings, and the possible result of the Full Court Appeal, are such that the Court does not consider that the applicant may not be able to argue the substantive application upon the bases put in the amendments in the Minute, for the reasons put at hearing by the applicant. The various proceedings referred to above are already complex, and may become more so as those proceedings (and in particular the Related Proceedings) progress, and are such that, ultimately in many respects they give rise to matters properly to be determined at a final hearing, and it therefore would be inappropriate to preclude the applicant from amending the substantive application to refer to both s.41(6A)(b) and (7) of the Bankruptcy Act, and to seek that time for compliance be extended until the determination of these proceedings. The Court therefore considers that the amendments to that effect are appropriate and ought to be granted.

5. The Court further notes that such amendments made now are made at a time when there is little prejudice to the respondent’s preparation for the hearing of the substantive application, which, in any event, may still be affected by the outcome of the Full Court Appeal and any developments in the Related Proceedings, which is doubtless, in part, why the applicant suggests, and it is appropriate to order that, there be a liberty to apply for a variation or discharge of the orders sought to be made in relation to the amendments to the substantive application.

6. The other amendments in the Minute (to the date of the Bankruptcy Notice and the form of the Notice to Respondent) are minor, technically and procedurally appropriate, and do not appear to be controversial, and ought to be granted.

Conclusion

1. For the above reasons the Court made the orders set out at [1] above on 17 May 2017.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Lucev

Date: 19 May 2017