Charan v Cotter as the Trustee in Bankruptcy of Charan

[2018] FCCA 3759

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHARAN v COTTER AS THE TRUSTEE IN BANKRUPTCY OF CHARAN & ORS [2018] FCCA 3759

Catchwords:
BANKRUPTCY – PRACTICE AND PROCEDURE – No appearance by or on behalf of the applicant – application dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Applicant: PRABHAKAR CHARAN

First Respondent: ROBSON COTTER AS THE TRUSTEE IN BANKRUPTCY OF PRABHAKAR CHARAN

Second Respondent: SCOTT DARREN PASCOE AND ANDREW JOHN SCOTT AS TRUSTEE IN BANRUPTCY OF USHA CHARAN

Third Respondent: BRUCE GLEESON AS THE TRUSTEE IN BANKRUPTCY OF PRASHANT CHARAN (FORMER BANKRUPT)

File Number: SYG 2683 of 2018

Judgment of: Judge Emmett

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Sydney

Delivered on: 17 December 2018

REPRESENTATION

Applicant: No appearance by or on behalf of the applicant

Counsel for the First Respondent: Ms Lara Nurpuri

Solicitors for the First Respondent: Rose Litigation Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2683 of 2018

PRABHAKAR CHARAN

Applicant

And

ROBSON COTTER AS THE TRUSTEE IN BANKRUPTCY OF PRABHAKAR CHARAN

First Respondent

SCOTT DARREN PASCOE AND ANDREW JOHN SCOTT AS TRUSTEE IN BANRUPTCY OF USHA CHARAN

Second Respondent

BRUCE GLEESON AS THE TRUSTEE IN BANKRUPTCY OF PRASHANT CHARAN (FORMER BANKRUPT)

Third Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. The first respondent is the Trustee in Bankruptcy of the applicant and seeks an order this morning, pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth) (“the Rules”), that the proceeding before this Court be dismissed by reason of the failure of the applicant to attend today’s directions hearing. 

2. The proceeding before this Court is an application, filed on 21 September 2018, seeking orders to set aside a Sequestration Order made against the estate of the applicant on 20 February 2018, in the following terms:

   “1. That the sequestration order made against the estate of Prabhakar Charan on 20 February 2018 be set aside pursuant to section 52 (2) Bankruptcy Act 1966 (Cth).

   2. Alternatively be annulled pursuant to section 1538 of the Act.

   3. That the cost orders awarded in the Creditors Petition proceedings be taxed ,in accordance with Regulation 40.12 of the Federal Court Rules 2011 .

   4. That the Respondents pay the cost of these proceedings.

   5. Any further orders the Court deems fit.”

3. On 12 December 2018, the matter was listed for directions before me today at 9:30am.

4. I note that the second and third respondents have both filed submitting appearances.

5. The applicant’s wife has attended this morning and provided to the first respondent’s counsel a medical certificate, dated 15 December 2018, which is in the following terms:

   “Medical Certificate

   THIS IS TO CERTIFY THAT I HAVE EXAMINED

   Mr Prabhakar Charan

   AND IN MY OPINION IS SUFFERING FROM A MEDICAL CONDITION AND WILL BE UNFIT FOR WORK FROM 16/12/2018 TO 18/12/2018 INCLUSIVE.

   This Certificate was completed on 15/12/2018.”

6. There has been no other communication received from the first respondent or the Court from the applicant seeking an adjournment of today’s hearing or for any other reason.

7. In the circumstances, I am satisfied that the applicant is aware of this morning’s directions hearing. 

8. The medical certificate does not express any opinion as to why it is that the applicant is unfit to attend Court this morning. It provides no diagnosis, and nor does it suggest that the applicant is unfit to appear in Court this morning.

9. To the extent that, if the applicant was seeking an adjournment by the provision of the medical certificate, in circumstances where the medical certificate is inadequate, any such application is refused.

10. Accordingly, the orders sought by the first respondent are appropriate and the proceeding before this Court, commenced by way of application filed on 21 September 2018, should be dismissed with costs.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 19 December 2018