Fashkeev v Peterson
[2007] FMCA 232
•27 February 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FASKHEEV & ANOR v PETERSON (No.1) | [2007] FMCA 232 |
| BANKRUPTCY – Application for review of Registrar’s Sequestration Order. PRACTICE AND PROCEDURE – Application for extension of time – application for adjournment. |
| Federal Magistrates Court (Bankruptcy) Rules 2006, r.203 |
| Applicant Creditors: | MIKHAIL FASKHEEV AND LYDIA FASKHEEVA |
| Respondent Debtor: | JENETHEA ADELINE PETERSON |
| File number: | ADG259 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 February 2007 |
| Delivered at: | Adelaide |
| Delivered on: | 27 February 2007 |
REPRESENTATION
| Applicant Creditors: | Mr. K. Jolly |
| Solicitors for the Applicant Creditors: | Kevin Jolly |
| Respondent Debtor: | In person |
| Counsel for the Trustee: | Mr M Critchley |
| Solicitors for the Trustee: | Kelly & Co |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG259 of 2006
| MIKHAIL FASKHEEV AND LYDIA FASKHEEVA |
Applicant Creditors
And
| JENETHEA ADELINE PETERSON |
Respondent Debtor
REASONS FOR JUDGMENT
(Revised from transcript)
(As corrected)
Application for extension of time
In these proceedings the Respondent Debtor, by application for review filed 31 January 2007, seeks to set aside orders made by a Registrar on 11 December 2006. It is clear that the application for review is filed out of time and contrary to the 21-day time limit set down in rule 2.03 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (the Bankruptcy Rules). That rule, however, also provides for the court to make any further direction in relation to the review, and I am satisfied the court has a discretion to consider whether to allow the application for review to proceed out of time. The Debtor has explained to the court that she attempted, but was unable, to file the application for review during the long vacation period.
There does not appear to be any strong opposition to the application proceeding, albeit out of time, and nor has the Debtor been required to provide affidavit evidence in support of her assertion, from the bar table, that she has attempted to file the application for review, unsuccessfully, earlier in January this year. In the circumstances, given that there is a relatively short time period involved, and noting that the time period occurred over the long vacation, it is my view, in the exercise of the court's discretion, that it would be appropriate to make a direction pursuant to rule 2.03, that the application for review be filed on 31 January 2007. That means that the court, subject to any other applications, will proceed to hear and determine the matter.
Application for adjournment
In this application for review the Debtor has sought an adjournment until 16 March 2007. The application for review, when filed, referred to a hearing date of 16 March 2007 at 10 am. However, the court due to unavailability of a Federal Magistrate to hear the matter on that date, has made arrangements for the application to be heard earlier. The first arrangement made was for the matter to be heard on 26 February 2007, and the parties were notified accordingly. The court then became aware that the parties may have some difficulty with that date of
26 February 2007, and it was decided to conduct an audio-link hearing on 22 February 2007.
At that time, I changed the hearing date from 26 February 2007 to
27 February 2007. Significantly, I also granted leave to the Debtor to file and serve any further affidavit material sought to be relied upon, and did so in relation to the application for review and application for extension of time. The court has already dealt with the issue of extension of time, and made a direction that the Debtor be permitted to proceed with her application for review, despite the fact that it is outside the 21-day time limit. The court notes that this matter, apart from being listed this day, where the Debtor remains self-represented, has not resulted in any further affidavit material being relied upon by the Debtor, although other material does appear on the file.
It is noted that when the petition was before the Registrar of the court on the first occasion, Monday 6 November 2006, it was adjourned to 20 November 2006. The learned Registrar, on 6 November 2006, apart from adjourning the matter to 20 November, also made a further order that the Debtor should file and serve any affidavit material upon which she wishes to rely in opposition to the petition and/or in support of a further adjournment by 4.30 pm on 16 November 2006. When the matter came back before the Registrar on 20 November 2006, it was then further adjourned to 27 November 2006.
Leave was granted to the Debtor to file and serve any further affidavit material, upon which the Debtor wished to rely in opposition to the petition, by 4.30 pm on Thursday, 23 November 2006. The matter then returned to court on 27 November 2006, and the learned Registrar further adjourned the petition to Monday, 11 December 2006. Again leave was granted to the Debtor to file and serve any further material, upon which the Debtor sought to rely in relation to the question of solvency, by 4.30 pm on 7 December 2006.
It appears from the court file that the Debtor took advantage of the order made on 27 November 2006, and filed a document on
6 December 2006, entitled “Further And Better Particulars In Opposition To The Petitioners”. (sic)
On 11 December 2006 apart from granting leave to the petitioning creditor, and making a further order in relation to re-verification and re-service being dispensed with, the Registrar then proceeded to make a sequestration order against the Debtor. It is that sequestration order which is now the subject of this application for review.
Before considering the Debtor's application for adjournment and submissions made by her, and noting that she is self-represented, it is appropriate to make a number of observations concerning the chronology of events. The first observation is that I am satisfied that, over a period of some months, opportunity has been given to the Debtor to file and serve relevant affidavits in opposition to the creditor's petitions. That opportunity was given to the Debtor as recently as 22 February 2007 by this court. It was an opportunity provided to the Debtor on a number of earlier occasions which are revealed in the orders to which reference has already been made.
In bankruptcy matters, where a sequestration order has been made and an application for review of that order is before the court, it is my strong view that the court should give priority to an application of this kind. There are a number of reasons for that view. The first, and most obvious, is that a sequestration order having been made, remains in force and effect not only as against the Debtor, but also in relation to the involvement of the Trustee and in the interests of other creditors, if there be other creditors, apart from the petitioning creditor.
The Trustee is represented today in what can be described in general terms as a neutral role, but, nevertheless, has indicated that certain action has already been undertaken by the Trustee in the normal course of events following a sequestration order. The Debtor has submitted that there are pending proceedings which, it is claimed, have some relevance to the current creditor's petition and the application for review of the sequestration order. Those proceedings appear to be proceedings in the District Court, application 198 of 2006, where the Debtor is the plaintiff, and others are named as defendants; and Supreme Court proceedings 1329 of 2005, where it appears that the Debtor is a defendant in a claim by the plaintiff, Permanent Mortgages Proprietary Limited.
The Debtor has argued that it would be appropriate in the circumstances to delay these proceedings, and has indicated from the bar table that both proceedings in the District Court and the Supreme Court in this State have been deferred and, it would appear, deferred until 16 March 2007. However, I infer that the delay in those proceedings is a delay which has occurred pending the outcome of this application for review. In my view, the bankruptcy proceedings, in these circumstances, should take precedence and should be dealt with as expeditiously as the court resources allow.
The Debtor has further indicated that she would be assisted by a further adjournment in relation to the preparation of further material, to assist her opposition to the creditor's petition, and to support otherwise her application for review of the sequestration order.
In my view, the chronology of events clearly reveals that an adequate opportunity has been given to the Debtor to properly provide to this court, on a number of occasions, material in opposition to the creditor's petition which, of course, is material which may also be used at this application for review, given that this application is a hearing de novo, and both parties are entitled to rely upon affidavit material filed prior to the order made by the Registrar.
I am satisfied that the Debtor has been given an adequate opportunity in this court to file and serve any further material upon which she seeks to rely in support of her application for review and in opposition to the creditor's petition. Having regard to the priority which must be given to matters of this kind, and noting the chronology of events referred to earlier in this decision, it is my concluded view, in the exercise of the court's discretion, that the application for adjournment by the Debtor should be refused.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 2 April 2007
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