Charub Pty Ltd v Mazoudier
[2010] FMCA 736
•21 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHARUB PTY LTD v MAZOUDIER | [2010] FMCA 736 |
| PRACTICE AND PROCEDURE – Application for adjournment. |
| Applicant: | CHARUB PTY LTD (ACN 106 887 585) |
| Respondent: | MITCHELL WALTER MAZOUDIER |
| File Number: | SYG 156 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 21 September 2010 |
| Date of Last Submission: | 21 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Avenell |
| Solicitors for the Applicant: | Surry Partners Lawyers |
| For the Respondent: | In person |
ORDERS
Application for adjournment dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 156 of 2010
| CHARUB PTY LTD (ACN 106 887 585) |
Applicant
And
| MITCHELL WALTER MAZOUDIER |
Respondent
REASONS FOR JUDGMENT
There comes before me an application for a sequestration order against Mr Mazoudier. The petition was filed on 29 January 2010. It was amended on 10 May 2010. Mr Mazoudier has resisted the matter being heard and has obtained several adjournments. One of those adjournments was in order for him to make application to the Supreme Court of New South Wales to set aside the default judgment upon which the bankruptcy notice and the petition were based. That default judgment was in the sum of $3,433,056.80. Mr Mazoudier made application to the Supreme Court and filed some affidavit material. The application was first listed for directions on 18 June 2010, and Mr Mazoudier was directed to put on evidence and submissions. The matter was listed for 9 August 2010, but no evidence or submissions had been put on. At the hearing, Mr Mazoudier applied for an adjournment, he was granted that adjournment, and a new timetable was given. The matter was listed for hearing on 16 September 2010. Mr Mazoudier was required to put on his evidence by 23 August 2010 but did not do so. The matter was relisted by the creditor before the Registrar and the creditor applied to dismiss Mr Mazoudier's application to set aside the judgment. At that time, he was represented by solicitors. They asked for some more time and it was granted subject to Mr Mazoudier putting on an affidavit explaining his failure to comply with the previous timetables.
The matter was adjourned until 3 September 2010 when counsel appeared on behalf of Mr Mazoudier only to inform the Court that his instructing solicitors had filed the necessary precursors to a notice of ceasing to act. The notice of motion was adjourned again until 10 September 2010, by which time the notice of ceasing to act had been filed. On that day, Mr Mazoudier was not present. Ms Avenell, who appeared on behalf of the respondent to the notice of motion, the applicant creditor, appeared and the Registrar dismissed the application to set aside judgment on the basis that there was a want of prosecution.
Mr Mazoudier now asks this Court for a further adjournment so that he can put on another application to set aside the judgment. He says he has received further legal advice and this application is different to the previous application. I have seen a copy of the application. It is difficult to comprehend the legal basis of it because it is a mixture of history and submission, rather than pure pleading. But it does seem to me, on a quick comparison, to be very similar to the document that Mr Mazoudier originally filed. Certainly, the claim is the same, namely, a cross-claim for some $22 million.
The difficulty that I have is that Mr Mazoudier does not deny that he owes the applicant creditor some three million-odd dollars and has not paid it. There is also a supporting creditor, Macquarie Leasing, which is owed $164,000.00 based upon a default judgment dated March 2009. Given the amount of time that this petition has been in the list and the indulgence that has previously been granted to Mr Mazoudier, I am of the view that he should have proceeded further with his application than he has to date.
The basis of his claim is that the creditor who lent Mr Mazoudier some money for a property development did not take appropriate steps with regard to securing itself and, in particular, did not take appropriate steps with regard to ensuring that it had priority over the original principle creditor, the National Australia Bank. It seems to me that this cause of action is fraught with difficulties and the prospects of having the judgment set aside are small. I am sensible of the fact that Mr Mazoudier clearly owes a lot of money to at least two people, and I feel that it is in the interests of justice and of his creditors generally that the petition should proceed. The adjournment is denied.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 27 September 2010
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