Corrigan v Owens (No.2)

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CORRIGAN v OWENS (No.2) [2008] FMCA 1370

BANKRUPTCY – Application to reinstate – court not accepting reasons for non-attendance by applicant – application dismissed – further application for interim relief – no grounds shown to support application.

Bankruptcy Act 1966, s.179
Federal Magistrates Court Rules 2001, r.16

Queensland v JL Holdings (1997) 189 CLR 146
Kostalanellis v Allen (1974) VR 596

Applicant: SUZANN OWENS

Respondent: DAVID LOFTHOUSE

File Number: MLG 1436 of 2004

Judgment of: Burchardt FM

Hearing date: 8 September 2008

Date of Last Submission: 8 September 2008

Delivered at: Melbourne

Delivered on: 8 September 2008

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Mr M.J. O'Brien

Solicitors for the Respondent: Aitken Partners Lawyers

ORDERS

1. The applications filed on 21 August 2008 and on 25 August 2008 be dismissed. 

2. The proceeding be otherwise adjourned to 19 September 2008 at 2.15 pm for consideration of arguments as to a general stay of proceedings.  

3. The Applicant shall pay the Respondent's costs to be paid out of the Bankrupt's estate. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1436 of 2004

SUZANN OWENS

Applicant

And

DAVID LOFTHOUSE

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. On 21 August 2008 I was due to start day one of a two-day preliminary inquiry pursuant to s.179 of the Bankruptcy Act 1966 (“the Act”).  That inquiry arose from an application filed by Ms Owens on 4 April 2008 and was refined by further orders made by me on 18 April 2008. 

2. The hearing date for 21 August had been set on 13 June 2008. At that time Ms Owens was represented by Mr Yarrow of counsel, whom I have been subsequently informed by Ms Owens herself has been appearing pro bono for her from time to time. On 21 August 2008, Mr Wolff appeared. He initially said that he was not sure if he was appearing for Ms Owens or not, and following an adjournment for him to obtain instructions he confirmed he did not so appear. Mr Wolff stayed, however, in Court and Mr Yarrow was present in Court throughout. Ms Owens did not appear and I dismissed her application for non‑attendance.

3. On the same day - in fact, that afternoon - Ms Owens applied to reinstate the proceedings.  In her affidavit in support she deposed that both Mr Wolff and Mr Yarrow had been briefed to appear.  She said she had arranged to pay Mr Wolff upon her return from hospital at lunchtime that day.  She deposed that she had cancer and that the appointment was critical to her treatment.  She said there had been a misunderstanding on the part of Mr Wolff and his clerk, Mr Lennon, as to the basis of the retainer; and confirmed that Mr Yarrow had not in fact been briefed in a formal sense.  She sought urgent reinstatement of the proceeding. 

4. On 25 August, Ms Owens filed an application and an affidavit. The application seeks first the consolidation of…