Harper James Law Group Pty Ltd v Dimarti
[2021] FedCFamC2G 345
•6 December 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harper James Law Group Pty Ltd v Dimarti [2021] FedCFamC2G 345
File number(s): SYG 434 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 6 December 2021 Catchwords: BANKRUPTCY – Practice and procedure – application by petitioning creditor for adjournment of hearing of creditor’s petition on the ground that the applicant proposed to file an amended creditor’s petition – whether it would be in the interests of justice to grant the adjournment – adjournment granted on terms that petitioning creditor pay the respondent’s costs thrown away by reason of the adjournment. Division: General Number of paragraphs: 10 Date of hearing: 6 December 2021 Counsel for the Applicant: Mr S Fitzpatrick for the applicant, by telephone Solicitor for the Applicant: Harper James Law Group Counsel for the Respondent: Mr G Carolan for the respondent, by telephone Solicitor for the Respondent: Pope & Spinks Solicitor ORDERS
SYG 434 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARPER JAMES LAW GROUP PTY LTD
Applicant
AND: CARMELO DIMARTI
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The hearing of the creditor’s petition is adjourned to 10:00 am on 31 January 2022.
2.The applicant pay the respondent’s costs thrown away by reason of the adjournment of the hearing of the creditor’s petition.
3.By 20 December 2021 the applicant file and serve an interim application seeking leave to file an amended creditor’s petition.
4.The parties have liberty to apply on such notice as the circumstances warrant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
There is listed before me for hearing today a creditor’s petition.
On Friday the applicant filed an interim application in which an order was sought for leave to file an amended creditor’s petition. The proposed amendment relates to certain security which the applicant claims the respondent had granted to the applicant. The proposed amendment purports to provide that the applicant is willing to surrender the security identified in the proposed amended creditor’s petition. The interim application is supported by an affidavit.
At the commencement of the hearing today Mr Carolan, who appeared for the respondent, opposed the application for an amendment. The basis of his opposition was that the security which the proposed amended creditor’s petition discloses is not sufficiently disclosed. In support of that submission Mr Carolan briefly referred to other items of what would have become evidence in the proceeding which he submitted disclose various other sources of security interest.
Mr Fitzpatrick, who appeared for the applicant, accepted that the creditor’s petition could not go forward in its current form, and, I think, he also accepted that there was merit in the submission Mr Carolan made about the insufficiency of the disclosure of the security interest or interests in the proposed amended creditor’s petition. In those circumstances – and I will not refer to the discussion which led to this – Mr Fitzpatrick has applied for an adjournment of the hearing of the creditor’s petition. That application was opposed by Mr Carolan.
Mr Fitzpatrick submitted that any prejudice that might arise from the adjournment of the creditor’s petition could be accommodated by the usual order that is made when an adjournment is granted, that is to say, that any costs thrown away by reason of the adjournment would be paid by the applicant in this case.
Mr Carolan opposed the adjournment. First, he submitted that it would be inconvenient for the matter to be adjourned for a short period – which is what I had initially proposed, and by a short period, I intended to mean the matter coming back before the end of year break. Second, Mr Carolan referred to what he submitted was an unfortunate complicated procedural history, the implication being that much of that unfortunate history was due to the acts or omissions of the applicant. Mr Carolan ultimately submitted that the appropriate course would simply be to dismiss the creditor’s petition, and if the applicant wishes to proceed to obtain a sequestration order against the respondent, the applicant should commence a fresh proceeding.
When considering applications for an adjournment, the primary concern is that interest be done to the parties, and included in that, of course, is that a court maintains the integrity of its listing practices so that litigants who are not party to this proceeding are also not prejudiced. And in considering that question, the Court looks at a number of factors. One is why the proceeding cannot commence on the appointed day. The second is what would be the utility of the adjournment being granted; and, here, the utility is the utility to the party seeking the adjournment. And third, one looks at the prejudice that will flow to the party opposing the application if an adjournment is granted.
I did not ask about this in the course of hearing submissions on the application for an adjournment, but it is the case the applicant has offered no explanation for the late application to amend the creditor’s petition. One can infer, as often happens in late amendments of this nature, that sufficient thought had not previously been given to the matters that have activated the application for an amendment. That is a factor against the granting of an adjournment.
When one looks at the utility of granting an adjournment, this is not a case where the dismissal of the proceeding will put an end to the litigation. All that is likely to happen is that the whole process will have to begin again which, to me, unless there is any special prejudice – is something to be avoided. In terms of inconvenience, I would accept that it would be inconvenient to adjourn the hearing to a time before the holiday break. However, I can accommodate a hearing early in the new year, and in my discussions with the parties’ representatives, 31 January 2022 is a date that is convenient to both.
In those circumstances, I am satisfied that any prejudice that will apply to the respondent by my granting an adjournment can be sufficiently accommodated by my adjourning the hearing on condition that the applicant pay all costs thrown away by reason of the adjournment. So what I propose to do is to make an order adjourning the hearing of the creditor’s petition to 31 January 2022, and I will make that order in a moment. I will order that the applicant pay the respondent’s costs thrown away by reason of the amendment. I will also make an order requiring the applicant to file and serve by 20 December 2021 an interim application for leave to file an amended creditor’s petition.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 9 December 2021
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