Ghosh v GOLDSMITH

[2016] FCCA 3255

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHOSH v GOLDSMITH & ANOR [2016] FCCA 3255

Catchwords:
BANKRUPTCY – Creditor’s petition – no appearance by petitioning creditor, supporting creditor or Second Respondent – petition dismissed.

Legislation:

Bankruptcy Act 1966, ss.46, 52

Applicant: RATNA GHOSH

First Respondent: BARRIE GOLDSMITH

Second Respondent: TAYLOR GILFILLAN

File Number: SYG 2572 of 2016

Judgment of: Judge Barnes

Hearing date: 7 December 2016

Delivered at: Sydney

Delivered on: 7 December 2016

REPRESENTATION

Applicant: No appearance

First Respondent: In person

Second Respondent: No appearance

ORDERS

1. The creditor’s petition be dismissed.

2. The Applicant pay the Respondent Barrie Goldsmith’s costs to be taxed in default of agreement in accordance with the Federal Court Rules.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2572 of 2016

RATNA GHOSH

Applicant

And

BARRIE GOLDSMITH

First Respondent

TAYLOR GILFILLAN

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. A creditor’s petition was presented by the Applicant, Dr Ratna Ghosh, on 21 September 2016 against both Respondents.  It was before a registrar of this Court on 14 November 2016.  A supporting creditor filed a notice of appearance.  A notice of opposition and supporting affidavit were filed by the First Respondent.  There was no notice of appearance, appearance or evidence of service on the Second Respondent.  The matter was allocated to my docket. 

2. The matter was listed for directions before me at 9:30am today at 80 William Street, Sydney.  There was no appearance by the Applicant at the time the matter was listed.  Nor is there any appearance now nearly half an hour later.  There was no appearance today for any supporting creditor.

3. In the circumstances, the First Respondent seeks that the petition be dismissed. It was initially suggested that it would be appropriate to dismiss the petition under s.52(2) of the Bankruptcy Act 1966 (Cth) on the basis that I was not satisfied with proof of the matters in s.52(1) of the Bankruptcy Act.

4. I hesitated to do this in circumstances where the matter was listed for directions today and not for hearing. However, in my view, not only did the petitioning creditor fail to appear or to provide any explanation for her non-appearance (see r.13.03C of the Federal Circuit Court Rules), she also failed to comply with the requirements of Part 4 of the Federal Circuit Court (Bankruptcy) Rules in relation to the documents which must accompany a creditor’s petition. This may also be seen as a failure to prosecute the proceeding with due diligence (see r.13.03A(1)).

5. I also note that while not necessary for present purposes to determine the validity of the petition, there are a number of technical issues with the creditor’s petition. In particular, it was brought against two apparently unconnected debtors in relation to two separate debts (cf s.46 of the Bankruptcy Act 1958 (Cth)).

6. In these circumstances, I am satisfied that it is appropriate to dismiss the creditor’s petition in the absence of the petitioning creditor and to make a costs order in favour of the First Respondent, a solicitor who was acting for himself.  

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 14 December 2016