Gullotti v Coad (No.2)
[2007] FMCA 750
•18 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GULLOTTI v COAD (No.2) | [2007] FMCA 750 |
| BANKRUPTCY – Application to set aside bankruptcy notice – District Court appeal against primary judgment withdrawn – no appearance by applicant – application dismissed. |
| Federal Court Rules, O.62 |
| Gullotti v Coad [2007] FMCA 525 |
| Applicant: | PAUL GULLOTTI |
| Respondent: | RACHEL ANNE COAD |
| File Number: | PEG 52 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 18 May 2007 |
| Date of Last Submission: | 18 May 2007 |
| Delivered at: | Perth |
| Delivered on: | 18 May 2007 |
REPRESENTATION
| Applicant: | No Appearance |
| Counsel for the Respondent: | Mr G. Douglas |
| Solicitors for the Respondent: | Hotchkin Hanly |
ORDERS
The Applicant’s application to set aside the Bankruptcy Notice No. 73 of 2007 be dismissed.
The Applicant pay the Respondent Creditor’s costs, including reserved costs, if not agreed, to be taxed under the Federal Court Rules (O.62).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 52 of 2007
| PAUL GULLOTTI |
Applicant
And
| RACHEL ANNE COAD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Orders previously made
In Gullotti v Coad [2007] FMCA 525 (“Gullotti (No. 1)”), this Court, as a consequence of the judgment then made, made orders in the following terms:
(1) The application for interim orders extending time for compliance with the bankruptcy notice be dismissed.
Then orders 3, 4 and 5 are in the terms set out in the orders attached to the judgment and are as follows:
(3) That the Applicant file and serve:
(a) particulars of the grounds of the application to set aside the Bankruptcy Notice; and
(b) affidavits in support of the set aside application,
by 4.00pm on 27 April 2007.
(4) That the Respondent file and serve:
(a) particulars of the grounds of opposition to the application to set aside the Bankruptcy Notice; and
(b) affidavits opposing the set aside application,
by 4.00pm on 7 May 2007.
(5) That the Applicant and Respondent file and serve a written outline of submissions, and one copy of each authority to be relied upon, by 4.00pm on 11 May 2007.
Orders 3, 4 and 5 have not been complied with. There is perhaps a good reason for that, which is explained in the affidavit of Mr Douglas filed in these proceedings on 14 May 2007 to which the Court will come.
The appeal
The Court notes that there was an appeal, adverted to at para. 3 of Gullotti (No. 1), filed with the District Court of Western Australia against the judgment and orders of the Magistrates Court of Western Australia made on 14 February 2007 which is described in Gullotti (No. 1) as the primary action judgment.
In respect of that appeal, the Court concluded in Gullotti (No. 1) at para. 18 that:
In the Court’s view it is unlikely that there are arguable grounds of appeal as the appeal is presently pleaded.
Mr Douglas’ affidavit
Mr Douglas has filed an affidavit sworn on 14 May 2007 in this matter and it is appropriate that various paragraphs of that affidavit are referred to, to explain the basis for the orders which the Court intends to make. At para. 8, Mr Douglas sets out that he, on 2 May 2007, received a letter from the Applicant’s former solicitors, Messrs Kitto and Kitto, stating that they would no longer act for the Applicant in relation to the application in this Court or the pending appeal that has been referred to in the District Court.
Further at para. 9, Mr Douglas deposes that a Notice of Address for Service in this proceeding was filed by the Applicant on 4 May 2007 and that on 4 May 2007 – and this is in para. 10 of the affidavit – the Applicant filed a Notice of Intention to Act in Person in the District Court appeal. At paragraph 11, Mr Douglas deposes to the fact that on 7 May 2007 he received a facsimile from the Applicant. That very short facsimile is both poignant and relevant to the proceedings in this matter. It is addressed to the Perth District Court and to Hotchkin Hanly (solicitors for the Respondent). It is dated 7 April 2007 but that appears to be the wrong date. It was probably meant to read 7 May 2007 and it says as follows:
Re appeal Gullotti v Coad. I want to give up this appeal because I can’t afford to pay lawyers and I don’t have any money to pay Rachel either. Yours sincerely, Paul Gullotti.
“Rachel” is a reference to Ms Coad who is the Respondent creditor in these proceedings. At para. 12, Mr Douglas goes on to depose to the fact that on 8 May 2007 he appeared on behalf of the Respondent in an application by the Applicant for a stay of execution of the judgment of the Magistrates Court pending an appeal. It further says that there was no appearance for the Applicant and Registrar Kingsley of the District Court of Western Australia ordered that the application for a stay of execution of the judgment be dismissed. Mr Douglas deposes in para. 14 of his affidavit to the fact that, on the basis of the paragraphs that the Court has set out in these reasons for judgment, he believes the Applicant no longer intends to prosecute the appeal in the District Court and seeks that this application be summarily dismissed.
The Court, having regard to:
a)the Applicant’s indication that he does not want to proceed with the primary judgment appeal;
b)the dismissal of the application for a stay of execution of the judgment and the non-appearance by the Applicant in those proceedings;
c)the Applicant’s admission that he has no money to pay the judgment debt; and
d)the fact that there has been no appearance by the Applicant today,
orders that the application to set aside the Bankruptcy Notice in these proceedings will be dismissed, with costs, the Applicant debtor to pay the Respondent creditor’s costs of the application, including reserved costs, to be agreed, or if not agreed, taxed according to the Federal Court Rules order 62.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: Jacky Semler
Date: 28 May 2007
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