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

1. The hearing of the application to set aside the bankruptcy notice is adjourned to 10:15 am on 1 November 2019.

2. The applicant, Mr El-Hanania, pay to the respondent, Mr Vella, the costs thrown away by reason of the adjournment.

3. The respondent’s costs thrown away by reason of the adjournment are set in the amount of $1,000.

4. The applicant, Mr El-Hanania, pay the costs referred to in order 3 by 17 October 2019.

NOTES

1. 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)

1. 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. 

2. 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. 

3. I have been informed by counsel who has appeared by Mr El-Hanania that he himself was only recently contacted. That is, of course, not doubted by me, but, in any event, it is confirmed in the affidavit made by Mr El-Hanania. Counsel informed me that if I were not to grant an adjournment, he would not be in a position to conduct the matter on Mr El-Hanania’s behalf. Mr Wallace, who appears on behalf of the respondent to the application to set aside the bankruptcy notice, Mr Vella, opposed the application for an adjournment, and he informed me that he was in a position to run the case today. 

4. I now look at what I need to consider.  The ultimate question is what do the interests of justice require. That requires me to consider a number of factors.  One is the explanation why the party seeking the adjournment, in this case, Mr El-Hanania, is not in a position to proceed with the hearing. As I mentioned before, there is evidence, and the reason he has given falls under the category of misadventure. That might scrape in as an adequate reason for his not being ready to proceed today. That, however, is not the fault of the respondent, Mr Vella.

5. Then I must look at prejudice, both on the assumption that an adjournment is not granted, and on the assumption that an adjournment is granted. The assumption that the adjournment is not granted looks at the prejudice Mr El-Hanania will suffer.  That prejudice is that, in effect, he will not be in a position to run his application today, and that is a significant prejudice. The prejudice, however, to Mr Vella if an adjournment is granted is, at the very least, the throwing away of costs, and also the additional delay. The throwing away of costs can, in part, be assuaged by the Court making an order for costs. That may or may not be adequate, depending on whether Mr El-Hanania is in a position to pay those costs.

6. As for delay, I am in a position to hear the matter within one month, that is to say, on 1 November 2019.  Also relevant, however, is the existence of an application to the Federal Court for leave to appeal against orders I have previously made. The effect of that application for leave, if successful and, if successful, the appeal is upheld, is that it will probably render moot the application to set aside the bankruptcy notice, and it will, in all likelihood, render moot the creditor's petition which is travelling along with this application to set aside the bankruptcy notice. So although there is prejudice if an adjournment is granted, that prejudice can, to a large extent, be remedied by costs.

7. Then, of course, I must consider the listing procedures in this Court. I am in the happy position that I have available time to hear the application, and my not hearing the matter today but hearing the matter at some later day is not something that can affect the efficient operation of the Court as a whole. To the extent it is inconvenient, it is an inconvenience to myself, but that is of no great moment. 

8. Mr Wallace applies for costs if an adjournment is granted.  He says from the bar table that the costs thrown away are $1,000. My initial impression was that $1,000 might be steep if today were to be treated simply as a directions hearing, but I must remind myself that the matter had been set down for a hearing today. The application for an adjournment has come, I think, late. So any assessment of the costs must take into account that Mr Wallace was prepared to appear before this Court, and ready to deal with the application today. In my opinion, $1,000 is a reasonable amount for which I should fix the costs thrown away by giving an adjournment.  I should note that if I am going to grant the adjournment, it will be on the basis that the order for costs I make be paid within 14 days.  I will also make a note that will form part of my orders that, if that amount is not paid by that time, then, when the matter is next before the Court, Mr Vella would be at liberty to apply to the Court for leave for the Court to authorise the issuing of writs of execution.

9. Bearing in mind all these matters, therefore, I am satisfied that the interests of justice would be best served if I grant the adjournment sought by Mr El-Hanania, subject to Mr El-Hanania paying the costs thrown away of Mr Vella, which I will fix in the amount of $1,000. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 October 2019