Charan v Bruce Gleeson in His Capacity as the Trustee of the Bankrupt Estate of Prashant Prashikar Charan
[2012] FMCA 303
•30 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHARAN v BRUCE GLEESON IN HIS CAPACITY AS THE TRUSTEE OF THE BANKRUPT ESTATE OF PRASHANT PRASHIKAR CHARAN | [2012] FMCA 303 |
| PRACTICE AND PROCEDURE – Application for adjournment – where matter previously adjourned to await judgment of Federal Court – where applicant intends to apply for special leave to the High Court – whether to grant adjournment. BANKRUPTCY – Review of decision of Registrar to dismiss application to set aside bankruptcy – where applicant’s representative granted leave to withdraw following refusal to grant adjournment – where no further appearance for the applicant – application dismissed. |
| Federal Magistrates Court (Bankruptcy) Rules 2006 Bankruptcy Act 1966, ss.120, 121 |
| Applicant: | USHA WATI CHARAN |
| Respondent: | BRUCE GLEESON IN HIS CAPACITY AS THE TRUSTEE OF THE BANKRUPT ESTATE OF PRASHANT PRASHIKAR CHARAN |
| File Number: | SYG 1045 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 30 March 2012 |
| Date of Last Submission: | 30 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 30 March 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Angelkov |
| Counsel for the Respondent: | Mr J O’Connor |
| Solicitors for the Respondent: | Gillis Delaney |
ORDERS
Application dismissed.
The Applicant pay the respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1045 of 2011
| USHA WATI CHARAN |
Applicant
And
| BRUCE GLEESON IN HIS CAPACITY AS THE TRUSTEE OF THE BANKRUPT ESTATE OF PRASHANT PRASHIKAR CHARAN |
Respondent
REASONS FOR JUDGMENT
There comes before me today the hearing of an application to review a decision of Registrar Morgan made on 21 November 2011. The learned Registrar dismissed an application to set aside a bankruptcy notice which had been issued as a result of the non payment of a costs order made by Barnes FM. It appears that there was running parallel to these proceedings other proceedings in this court pursuant to ss.120, 121 of the Bankruptcy Act 1966 between the same parties.
These proceeding were heard and determined by Lloyd-Jones FM but were the subject of an appeal to the Federal Court. On 22 December 2011 Lloyd-Jones FM in the instant proceedings determined that he should recuse himself because he had made credit findings against the applicant in the previous proceedings. The matter was then referred into my list where it was first mentioned on 13 February 2012.
On the day I was informed that the appeal had been heard and judgment was awaited. I made orders adjourning the matter until today but I gave liberty to apply for an earlier hearing should it be that the appeal decision came down significantly earlier. It is important to note that the appeal decision related to matters which were independent of the decision for costs given by Barnes FM.
This morning Mr Angelkov appears for the applicant. He has sought a further adjournment of this review on the basis that the judgment in the appeal which was handed down on 16 March 2012 against his client is to be the subject of an application for special leave to the High Court. No application has yet been made and he tells me that counsel who will be dealing with the matter, Mr de Robillard, is currently overseas.
I have given consideration to the application, but I believe I should refuse it. Whatever the status of the application for special leave may be it relates to an entirely separate matter and at the very most a successful appeal could result in an order for costs in favour of the applicant against the respondent trustee. But this would not save an act of bankruptcy that would appear to me to have already been committed by the failure of the applicant to comply with the bankruptcy notice previously issued.
I therefore propose to hear the application. Mr Angelkov tells me that in those circumstances he must withdraw as he does not have sufficient information to properly represent his client and I give him leave to do so thanking him for his assistance.
Having given Mr Angelkov leave to withdraw there is no one here to make the application on behalf of Ms Charan. In those circumstances I propose to dismiss the application and order that the Applicant pay the Respondent’s costs to be taxed if not agreed in accordance with the Federal Magistrates Court (Bankruptcy) Rules 2006.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 12 April 2012
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