Field v Jenolan Caves Resort Pty Ltd (No.1)
[2008] FMCA 1700
•15 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FIELD v JENOLAN CAVES RESORT PTY LTD (No.1) | [2008] FMCA 1700 |
| BANKRUPTCY – Application for adjournment – where court orders a timetable not complied with. |
| Bankruptcy Act 1966, s.41(6A) Federal Magistrates Court (Bankruptcy) Rules 2006 |
| Applicant: | ARCHER PHILLIP FIELD |
| Respondent: | JENOLAN CAVES RESORT PTY LTD (RECEIVER & MANAGER APPOINTED) (IN LIQUIDATION) ACN 003 985 760 |
| File Number: | SYG 2637 of 2008 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 December 2008 |
| Date of Last Submission: | 15 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Newton |
| Solicitors for the Applicant: | Messenger & Messenger |
| Counsel for the Respondent: | Mr P Dowdy |
| Solicitors for the Respondent: | Henry Davis York |
ORDERS
Application to admit affidavit and seek adjournment declined.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2637 of 2008
| ARCHER PHILLIP FIELD |
Applicant
And
| JENOLAN CAVES RESORT PTY LTD (RECEIVER & MANAGER APPOINTED) (IN LIQUIDATION) ACN 003 985 760 |
Respondent
REASONS FOR JUDGMENT
On 13 October 2008 an application was filed in this court seeking to set aside the bankruptcy notice numbered NN3281/08. An Affidavit was filed with that application which did not specify terms but which appeared to elude to the possibility that the applicant had a cross-claim, cross-demand or set off he was unable to have raised in the proceedings in which the judgment was obtained. On 13 October 2008
Registrar Tesoriero made orders pursuant to s.41(6A) of the Bankruptcy Act 1966 (the “Act”) and Rule 3.03 of the Federal Magistrates Court (Bankruptcy) Rules 2006 extending the time for compliance with the bankruptcy notice until 28 October.
On 28 October 2008 the matter came before me. I made orders for the interlocutory processes necessary to bring this matter to hearing today, 15 December 2008. Those orders included an order that the applicant file and serve any affidavits in reply to the respondent's affidavits, which had to be filed by 3 November, by 10 November. I also ordered that the parties file with my associate and serve an outline of case and list of authorities on or before 8 December 2008. On 3 November 2008 Michael Kenneth Sullivan, a solicitor in the employ of the respondents, filed an affidavit in compliance with those orders. The applicant did not file any further evidence and he did not file an outline of submissions as ordered. He comes before the court today seeking to file an affidavit sworn 15 December 2008 and a set of submissions dated 12 December 2008. The affidavit itself is objected to by the respondent. It gives a history of commercial dealings between the St George Bank, the respondent, which is a company in liquidation, and with receivers and managers appointed, and the applicant. The affidavit is some 11 paragraphs long and is clearly only an outline of the dispute between the parties. It ends with a statement that:
“It is unfair and unconscionable that the respondent be allowed to issue a bankruptcy notice against me.”
I am unaware of any provision of the Act which prevents a bankruptcy notice being issued on the grounds of unfairness or unconscionability. But no doubt if I gave him the opportunity Mr Newton would seek to persuade me that this is a possibility.
I do not intend to give Mr Newton that opportunity. The orders of this court in bankruptcy matters in particular are made for the purposes of being observed and not for the purposes of being ignored. It appears that there is a bankruptcy petition already under way against the applicant and it is clear that there are people who believe he owes them several million dollars and that there are judgments against him for those sums of money, including the judgment in the current proceedings for approximately $800,000.00 plus costs. What Mr Newton is really asking for is an adjournment. He wants these proceedings and the resistance to the petition to be heard together. But the petition is not issued by this respondent. It is issued by the St George Bank and the matters are not necessarily appropriate for being heard together. The judgment debt, the subject of the bankruptcy notice, is apparently based upon the company's loan to its director. It does not seem to me to have very much to do with the fact that the applicant was unable to honour his obligations to the company’s mortgagee.
In the circumstances, I do not propose to admit this affidavit. I do not propose to grant an adjournment. I will be quite happy to hear Mr Newton on the application that has been filed and the affidavit in support with it that has been filed.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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