Deputy Commissioner of Taxation v Apostolovski (No.2)
[2009] FMCA 761
•31 July 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DEPUTY COMMISSIONER OF TAXATION v APOSTOLOVSKI (No.2) | [2009] FMCA 761 |
| BANKRUPTCY – Application for adjournment of the hearing of a creditor’s petition. |
| Bankruptcy Act 1966 (Cth), s.52 |
| Applicant: | DEPUTY COMMISSIONER OF TAXATION |
| Respondent: | PETER APOSTOLOVSKI |
| File Number: | SYG2638 of 2008 |
| Judgment of: | Barnes FM |
| Hearing date: | 31 July 2009 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Craddock Murray Neuman |
| Counsel for the Respondent: | Mr P Kintominas |
| Solicitors for the Respondent: | Charles K Tsalidis |
ORDERS
The application for an adjournment is refused.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2638 of 2008
| DEPUTY COMMISSIONER OF TAXATION |
Applicant
And
| PETER APOSTOLOVSKI |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for an adjournment of the hearing of a creditor's petition made on the day on which the creditor's petition was listed for hearing. The matter has been before the Court on a considerable number of occasions since the initial presentation of a creditor's petition on 13 October 2008.
The adjournment application is made on the basis that counsel for the respondent advises that he has instructions to appeal (although he clarified that it would be necessary to seek leave to appeal) from an interlocutory judgment delivered by me in this matter on 10 July 2009, in which I gave the applicant leave to file and rely on an amended creditor's petition. At that time it was foreshadowed that the debtor may consider the possibility of appealing or seeking leave to appeal to the Federal Court.
I listed the creditor’s petition for hearing on 31 July 2009, some three weeks after the date on which I delivered judgment. In that time no application for leave to appeal was filed. There is no draft application before me indicating grounds for any proposed application for leave to appeal or, if it be necessary, any extension of time. There is no evidence before me in relation to proposed grounds of appeal other than the suggestion that the point on which the decision turned was “novel” and had significance not only for the debtor but more generally and that I may be in error.
This may of course be so. However I am not persuaded that it is in the interests of justice or of the parties to adjourn this matter further. I have regard to all of the circumstances, including the number of occasions on which this matter has been before the Court and in particular the time that has elapsed since delivery of my judgment, which I consider provided ample time for any application for leave to appeal to be made to the Federal Court.
While I accept that, as counsel for the respondent tells me, he now has instructions to appeal, there is no indication as to why this was not done within the time limits for an application for leave to appeal, or, indeed, within the 21 days that have passed since the date of my judgment.
I recognise, as counsel for the respondent pointed out, that the Federal Court could extend the time for an application for leave to appeal. However, I also bear in mind that I allowed leave for the creditor to file an amended creditor's petition as the basis for the amendment was arguable and the issue of whether the debts sought to be relied on by the creditor were due and payable at the time of the act of bankruptcy could be determined at the hearing of the petition. I consider that this is the appropriate way to proceed. I also note that no issue is taken by the respondent as to whether one particular category of debt relied on by the applicant (a running balance account deficit debt), was in fact due and payable as at the date of the act of bankruptcy.
This is the tenth time on which the matter has been before the Court. There have been a number of adjournments on previous occasions, one of which was by consent. I appreciate that some of those adjournments were in circumstances where there were endeavours made by the debtor to meet his liability. I have also had regard to the fact that, while a notice of opposition was filed, there was no supporting affidavit evidence. While I understand that circumstances may have changed, there has been ample opportunity for such evidence to be filed. That has not happened and, indeed, there seemed to be an indication from counsel for the respondent that there would be no basis for opposition to the possibility of making a sequestration order, were the adjournment sought today refused.
I also note in that respect that as was raised in submissions by the parties, it would be open to the debtor, were I to make a sequestration order, to seek a stay of that sequestration order pursuant to s.52 of the Bankruptcy Act 1966 (Cth), if he sought to appeal a decision in relation to a sequestration order.
In light of the fact that the respondent has an opportunity today to address the legal issues in relation to whether there was a debt due and payable at the time of the act of bankruptcy, I consider that it is appropriate to proceed today. If it causes difficulty for the applicant to address this issue because it is not referred to in the notice of the opposition, I will allow additional time for submissions if necessary. In the absence of an application for leave to appeal or a clearer indication of the basis for any such application and given the time that has passed since my judgment I am not persuaded that an adjournment to allow for an application for leave to appeal is warranted.
I have also had regard to the prima facie entitlement of a creditor to have a creditor's petition heard. It is some ten months since the time of the first presentation of the creditor's petition in this case. I am not persuaded that a further adjournment on the basis contended for by the respondent is in the interests of justice or of the parties in all the circumstances.
Accordingly, the application for an adjournment is refused.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 13 August 2009
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