Boyce v McELLIGOTT
[2012] FMCA 908
•25 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BOYCE & ORS v McELLIGOTT | [2012] FMCA 908 |
| PRACTICE AND PROCEDURE – Request for adjournment – refused. |
| First Applicant: | PETER GERRARD BOYCE |
| Second Applicant: | ALAN WILLIAM CLARKE |
| Third Applicant: | SIMONE ELIZABETH PEARCE |
| Fourth Applicant: | GEOFFREY JOHN BARR |
| Respondent: | LORAIN RONDA McELLIGOTT |
| File Number: | BRG 420 of 2012 |
| Judgment of: | Jarrett FM |
| Hearing date: | 25 June 2012 |
| Date of Last Submission: | 25 June 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 25 June 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr M Jones |
| Solicitors for the Applicants: | Butler McDermott Lawyers |
| The Respondent appeared in person |
ORDERS
The request for an adjournment is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 420 of 2012
| PETER GERRARD BOYCE |
First Applicant
| ALAN WILLIAM CLARKE |
Second Applicant
| SIMONE ELIZABETH PEARCE |
Third Applicant
| GEOFFREY JOHN BARR |
Applicant
And
| LORAIN RONDA McELLIGOTT |
Respondent
REASONS FOR JUDGMENT
Ex tempore
The application for an adjournment will be refused. The respondent to the creditor’s petition has had ample opportunity to have legal advice in respect of the matter, both this matter and the dispute which she wishes to raise against Mr Boyce more generally. The creditor’s petition was served more than three weeks ago according to the affidavit of service. There is no evidence before me which suggests that the respondent has done anything in that time to secure legal advice, although she says from the Bar table that she has made some inquiries and sent material off by email.
Even if that was so, if there was to be some legitimate and serious attempt to adjourn the application on the basis that there was a serious and legitimate claim to be prosecuted, one would have expected the legal representatives that she has engaged to appear. But more than that, it seems that there is no purpose to be served by adjourning the creditor’s petition because the proceedings which the respondent wishes to pursue in the Federal Court she has already commenced – they are on foot – and the issue of whether they ought to, in some way, factor in a decision as to whether to grant a sequestration order can be the subject of argument whether those proceedings have been concluded or not. Moreover, those proceedings are against Peter Gerard Boyce. Those proceedings do not seem to be against any other respondent. It does not concern all of the petitioning creditors.
The petitioning creditors in this case, however, include not just Mr Boyce but Mr Clarke, Ms Pearce and Mr Barr. They are not respondents to the Federal Court proceedings. There seems to be no reason why their application – because they are owed the money as well – should not proceed.
The judgment debt upon which the bankruptcy notice is founded, which in turn founds this creditor’s petition, is it seems, the subject of an application to extend time within which to apply for special leave to appeal in the High Court but it is the second application made by the respondent in that respect. If the first one was characterised as having no serious prospect of success and, indeed, has been dismissed, it could hardly be said that the second was any better. No new matters are identified as strengthening the prospects of success.
In those circumstances, to grant an adjournment would be futile. The adjournment is refused.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Jarrett FM delivered on 25 June, 2012.
Date: 26 September 2012
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