Citigroup Pty Ltd v Pietsch

[2009] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CITIGROUP PTY LTD v PIETSCH [2009] FMCA 493

BANKRUPTCY – Creditor’s Petition – request for adjournment.

Applicant: CITIGROUP PTY LTD

Respondent: RUSSELL IVAN PIETSCH

File Number: BRG 200 of 2009

Judgment of: Wilson FM

Hearing date: 14 May 2009

Date of Last Submission: 14 May 2009

Delivered at: Brisbane

Delivered on: 14 May 2009

REPRESENTATION

Counsel for the Applicant: N/A

Solicitors for the Applicant: DibbsBarker

Counsel for the Respondent: N/A

Solicitors for the Respondent: Jaak Oks Lawyers

ORDERS

1. That this matter be adjourned to 9:30am on 29 May 2009 in the Federal Magistrates Court of Australia at Brisbane.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 200 of 2009

CITIGROUP PTY LTD

Applicant

And

RUSSELL IVAN PIETSCH

Respondent

REASONS FOR JUDGMENT

1. In this matter the respondent to the creditor's petition seeks an adjournment for a period of four to six weeks to enable an application to be made to the Local Court of New South Wales to set aside a judgment obtained by the applicant creditor on 15 August 2008.  That application for an adjournment is opposed.

2. During the course of argument, Mr Oakes, who appeared on behalf of the respondent debtor, indicated that it was his belief, his firm only having recently been engaged by the respondent, that it was a basis of defence to the claim that payment had been made in full to the applicant.  That has not been stated in the respondent's affidavit material to date.  The respondent's present affidavit contains a number of confusing documents the gist of which seem to be that there has been a tender of $5 in satisfaction of the applicant's loan balance.  I may not be doing justice to the complexity of the documents which are annexed to the respondent's affidavit, but that seems to me to be the gist of what is presently said.

3. The other matter which is raised by the respondent is that the applicant creditor's terms and conditions of its credit contract make applicable the law of South Australia to the credit contract, and, secondly, that the parties agree to submit to the jurisdiction of the South Australian Courts.  It is therefore submitted that the Local Court of New South Wales did not have jurisdiction to enter the default judgment against the respondent debtor. 

4. The applicable law provision would not preclude the New South Wales Court from having jurisdiction as opposed to the choice of law that applies to the parties' contract.  As to the second aspect of the clause, there must be real concern whether it is a valid ouster of jurisdiction clause thereby depriving the New South Wales Courts of jurisdiction.  That is a matter that can perhaps be better debated when considered submissions are made on the topic.

5. It seems to me that if the debtor's real position is that he has discharged his liability to the applicant in full he should say so.  If he has, in fact, done so the consequences of bankruptcy should not be visited on him.  As I have said, the respondent's affidavit material to date does not make that statement but I think it is in the interests of justice to allow him to do so.  He ought to be able to put on an affidavit relating to that matter very quickly.  The Court is able to deal with the matter on 22 May 2009.  An affidavit should be filed and served by the respondent by 4 pm on 20 May 2009 deposing to whether or not the debt has been paid in full.  I propose to allow an adjournment for that purpose.

6. In my view the two affidavits that have been filed to date on behalf of the respondent do not adequately address the issue for which the adjournment is granted.  The respondent, who applies for the adjournment, is in effect seeking the indulgence of the Court and of the creditor and, in my view, the creditor should be compensated for his costs thrown away because of that adjournment. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  22 May 2009