Croft v Becton Investments Management Ltd
[2009] FMCA 725
•22 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CROFT v BECTON INVESTMENTS MANAGEMENT LTD | [2009] FMCA 725 |
| BANKRUPTCY – Sequestration order – application for review. PRACTICE AND PROCEDURE – Adjournment – interests of justice – self-represented litigant. |
| Bankruptcy Act 1966, s.52(2)(b) Federal Magistrates Act 1999, ss.3 and 42 Federal Magistrates Court Rules 2001, r.20.03 |
| State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 |
| Applicant: | RODNEY KIM CROFT |
| Respondent: | BECTON INVESTMENTS MANAGEMENT LTD |
| File Number: | PEG 67 of 2009 |
| Judgment of: | Lucev FM |
| Hearing date: | 22 July 2009 |
| Date of Last Submission: | 22 July 2009 |
| Delivered at: | Perth |
| Delivered on: | 22 July 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.K. De Silva |
| Solicitors for the Applicant: | Murfett Legal |
| Counsel for the Respondent: | Mr J.D. Maclaurin |
| Solicitors for the Respondent: | Marks & Sands |
ORDERS
An adjournment of today’s proceedings be granted.
The proceedings be adjourned to a directions hearing at 9:30am on 4 August 2009.
The matter also be listed for hearing at 10:00am on 4 August 2009 in the event that there is no application for leave to adduce further evidence at the directions hearing.
The costs of today be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 67 of 2009
| RODNEY KIM CROFT |
Applicant
And
| BECTON INVESTMENTS MANAGEMENT LTD |
Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons edited from transcript)
The applicant was self-represented at the hearing on 14 July 2009. The respondent was represented by counsel who appears again today. The application which has been made today by Mr De Silva, who now appears as counsel for the applicant, is that the proceedings be adjourned for a short time to allow Mr De Silva to examine the transcript of the proceedings, the documents that have been tendered in the proceedings, and any other relevant documents to see whether or not Mr Croft should continue simply to put his closing submissions or whether or not an application might be made for leave to present further evidence. Leave to present further evidence on an application for review, it being a de novo proceeding, is something that is contemplated by r.20.03 of the Federal Magistrates Court Rules 2001.
In the circumstances the Court, in determining whether or not there is to be an adjournment, has to have regard for the interests of justice.[1] In looking at the question of the interests of justice the Court is required to strike a balance, taking into account the interests of the applicant, presently the bankrupt, and the respondent. The Court, in that regard, notes that at hearing Mr Croft was self-represented and as the Court indicated in an exchange with Mr De Silva during the course of his submissions, it would do no disservice to Mr Croft to say that his presentation on the case was emotive and, from time to time, strayed from the relevant issues into irrelevant issues and perhaps did not focus so much on the facts as it might have done.
[1] As the High Court pointed out in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1.
The Court also has regard to the fact that bankruptcy does have quasi-penal consequences and that the consequences that flow from a finding of bankruptcy are serious. The Court bears that in mind. It is also the case, as the Court indicated in an exchange with Mr Maclaurin for the respondent, that the Court is concerned that there may be a gap in the evidence in relation to the transaction of the relevant sum of money which Mr Croft says has been paid to Becton Investments, which says that it has not received the money. The Court acknowledges that the receipt of the money by Becton Investments or otherwise is clearly a relevant issue, and on the evidence as it presently stands – unchallenged and possibly unchallengeable – Becton Investments has not received or does not appear to have received that money.
One of the issues in making a sequestration order or in reviewing a sequestration order is whether or not a sequestration order ought to have been made. As the Court further indicated in the course of exchange in submissions with Mr Maclaurin, there does appear to be an issue, or there might arguably be an issue, as to the transaction or transactions which Mr Croft says occurred by way of rent payments, and what happened with the money from that point onwards. In those circumstances the Court, as it indicated to Mr Maclaurin, was concerned that there may have been some gap in the evidence and a gap of that type in the evidence might be an issue in determining whether or not a sequestration order ought to be have issued in any event.
The application for an adjournment comes very late in the proceedings. The respondent rightly notes that Mr Croft has had an opportunity to put his case fulsomely and to the extent that he did put it, he did put it that way and swore a number of affidavits which were admitted into evidence in these proceedings, including affidavits which were originally before the Registrar on the sequestration order application. This Court is obliged to act expeditiously, efficiently and economically,[2] and the point is made by counsel for the respondent that, in essence, this case is one which ought to have been closed this afternoon by way of closing submissions, rather than an application for adjournment.
[2] By reason of ss.3 and 42 of the Federal Magistrates Act 1999.
The Court must be satisfied that justice has been done. The Court, in the circumstances of this case, is not entirely satisfied that were the adjournment not to be granted, that justice might have been done. The Court says that because of the observations that it has made about the presentation of the case by Mr Croft as a self-represented litigant and whatever else may happen, whether the case proceeds by way of closing submissions or goes further into the presentation of evidence, it is manifest that a legal practitioner acting for Mr Croft will be able to put the case in a better way and in a better light for Mr Croft than Mr Croft has been able to or would be able to do himself.
Furthermore, as the Court has indicated, the Court does have some concern as to whether the evidence before it or the evidence which might be put before it might indicate that there is a case for querying whether a sequestration order ought to have issued in any event, bearing in mind the broad discretion vested in the Court by reason of s.52(2)(b) of the Bankruptcy Act 1966 whereby the Court may find that for any other sufficient cause, a sequestration order ought not be made. Those concerns may, at the end of the day, amount to nothing once the applicant’s newly instructed solicitors have had an opportunity to review the relevant papers. If that be the case, then the proceedings can simply go to final submissions on the evidence as it stands.
If, however, there is some other issue which ought to be addressed before the Court finalises its views on the application for review, then no doubt an application for leave to bring further evidence can be brought. For those reasons, the Court is of the view that there ought to be an adjournment of the proceedings. That adjournment ought to be one of not more than two weeks to a directions hearing on 4 August at 9.30 am.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Susan Dinon
Date: 28 July 2009
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