El-Hanania v Vella (No.2) - [2019] FCCA 2907

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL-HANANIA v VELLA (No.2)

[2019] FCCA 2907

Catchwords:
BANKRUPTCY – PRACTICE AND PROCEDURE – Application by applicant for adjournment of application to set aside bankruptcy notice – whether adequate explanation given for applicant not being in a position to proceed with hearing – whether applicant will suffer prejudice if adjournment not granted – whether respondents will suffer prejudice if adjournment granted – application for adjournment granted on terms that applicant pay costs thrown away.

Applicant:

SABA EL-HANANIA

Respondent:

ALON JOSEPH VELLA

File Number:

SYG 2258 of 2018

Judgment of:

Judge Manousaridis

Hearing date:

3 October 2019

Date of Last Submission:

3 October 2019

Delivered at:

Sydney

Delivered on:

3 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr J T Johnson

Solicitors for the Applicant:

Saba El-Hanania Lawyers

Solicitors for the Respondent:

Mr T Wallace of Sewell & Kettle Lawyers

ORDERS

The hearing of the application to set aside the bankruptcy notice is adjourned to 10:15 am on 1 November 2019.
The applicant, Mr El-Hanania, pay to the respondent, Mr Vella, the costs thrown away by reason of the adjournment.
The respondent’s costs thrown away by reason of the adjournment are set in the amount of $1,000.
The applicant, Mr El-Hanania, pay the costs referred to in order 3 by 17 October 2019.

NOTES

If Mr El-Hanania does not pay the costs as provided for by order 4, the respondent, Mr Vella, will be at liberty when the matter is before the Court on 1 November 2019 to apply for the issue of a writ of execution or such other enforcement process.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2258 of 2018

SABA EL-HANANIA

Applicant

And

ALON JOSEPH VELLA

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

There was set down before me today a hearing of an application to set aside a bankruptcy notice. There is also before me today a directions hearing in relation to a creditor's petition which is related to the application to set aside the bankruptcy notice.
On coming on the bench, the applicant on the application to set aside the bankruptcy notice, Mr El-Hanania, through his counsel, Mr Johnson, applied for an adjournment of the hearing of the application to set aside the bankruptcy notice. In support of that application, I was provided with, and, for the purposes of these reasons for judgment, I will take as having been read, an affidavit made by Mr El-Hanania. It sets out the reasons why the adjournment is sought. In brief terms, without going into the details, the explanation is that the counsel that Mr El-Hanania had briefed to appear at the hearing today had become unavailable, and the submission is that that unavailability came through some error or misunderstanding. The evidence is not entirely fulsome in the nature of the error, but, in any event, that is the explanation, and I will proceed on the basis that there has been an error.
I have been informed by counsel who has appeared by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2907
Decision Date: 3 October 2019

CaseChat Overview and Summary

In *El-Hanania v Vella (No.2)*, the applicant sought an adjournment of an application to set aside a bankruptcy notice. The dispute concerned whether the applicant had provided an adequate explanation for their inability to proceed with the hearing of the set aside application and whether they would suffer prejudice if the adjournment was refused, balanced against any prejudice the respondents might suffer if it were granted. The matter was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether to grant the applicant's request for an adjournment of the hearing to set aside the bankruptcy notice. This required the Court to consider the adequacy of the reasons provided by the applicant for not being ready to proceed, and to weigh the potential prejudice to each party depending on the Court's decision.

Judge Manousaridis granted the adjournment. The Court's reasoning focused on the principles governing adjournments, particularly the need to balance the convenience of the parties and the interests of justice. The Court found that the applicant had demonstrated sufficient grounds for the adjournment, and that the prejudice to the applicant if the matter proceeded without adequate preparation would outweigh the prejudice to the respondents. The adjournment was granted on the condition that the applicant pay the costs thrown away by the respondents due to the adjournment.

Orders