Jiang v Mansour

[2019] FCCA 2004

FEDERAL CIRCUIT COURT OF AUSTRALIA

JIANG & ANOR v MANSOUR [2019] FCCA 2004

Catchwords:
PRACTICE AND PROCEDURE – Application for summary dismissal of proceeding to set aside bankruptcy notice – such application made by respondent at a directions hearing where there was no appearance by the applicant and notice of intention to make application for summary dismissal had not been given to the applicants – proceeding dismissed on ground of non-appearance by the applicants.

Legislation:

Bankruptcy Act 1966 (Cth), s.41(7)
Federal Circuit Court of Australia Act 1999 (Cth), s.17A(2)

Federal Circuit Court Rules 2001 (Cth), rr.13.03C(1)(c), 13.09, 13.10, 16.05

First Applicant: YONG JIANG

Second Applicant SHELLY SUI TONG NIU

Respondent: JOE MANSOUR

File Number: SYG 1016 of 2019

Judgment of: Judge Manousaridis

Hearing date: 10 July 2019

Date of Last Submission: 10 July 2019

Delivered at: Sydney

Delivered on: 10 July 2019

REPRESENTATION

No appearance by or on behalf of the applicants

Counsel for the Respondent: Mr H. Durack

Solicitors for the Respondent: Mars Legal

ORDERS

1. The application is dismissed pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules).

2. The applicants pay the respondent’s costs as agreed or as assessed or taxed.

3. The respondent is to cause a sealed copy of these orders, together with a copy of r.16.05 of the FCC Rules, to be served on the applicants.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1016 of 2019

YONG JIANG

First Applicant

SHELLY SUI TONG NIU
Second Applicant

And

JOE MANSOUR

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. Today there was listed before me for directions an application brought by the applicants to set aside a bankruptcy notice.  The matter was so listed by me on 28 June 2019. On that day I delivered reasons for judgment in relation to an application brought by the applicants in this proceeding in another proceeding in which they were the respondents, and that proceeding is Mansour v Jiang & Anor, no. 2249 of 2016. In those reasons for judgment, I ordered that an application in a case filed in those proceedings be summarily dismissed pursuant to s.17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth). The application in a case that I so dismissed was for an order to set aside a judgment that I ordered be entered by consent on 21 November 2017. The amount of the judgment was $258,461.86.

2. I heard the application for summary dismissal on 28 May 2019, but I made directions for the filing of further affidavits and further submissions. The significance of the summary dismissal of the application made in the other proceedings is that the judgment that was sought to be set aside in the other proceedings, and which application I summarily dismissed, is the same judgment on the basis of which the bankruptcy notice, the subject of this proceeding, is sought to be set aside.

3. On 28 May 2019 the applicants in this proceeding, Mr Jiang and Ms Niu, were represented by Mr Kozlowski. From recollection, Mr Kozlowski said that the application to set aside the bankruptcy notice relied on the applicants in this case being successful in setting aside the judgment in the other proceeding.  In any event, what occurred is after I received further submissions in the other proceeding and evidence, I listed the matter for judgment on 28 June 2019.  There was no appearance by any party on that day.  I nevertheless pronounced orders in the other proceeding summarily dismissing the application in the case to set aside the judgment, and I directed that this proceeding be listed for directions before me today. 

4. At my direction a copy of the judgment and the orders that I made in the other proceeding on 28 June 2019 were sent to the legal representatives of the parties, including the legal representative of the applicants in this proceeding. The email was sent by my associate on 28 June 2019 which stated, among other things: “Please note that the matter is listed for a directions hearing at 9.30 am on Wednesday, 10 July 2019”.  And that brings me to what is before me today.  The respondent, Mr Mansour, is represented today by counsel, Mr Durack.  The matter was called at approximately 9.35 or 9.40 this morning, but there was no appearance by or on behalf of the applicants – and, indeed, it is 9.50 am as I am delivering these reasons for judgment and there has still been no appearance.

5. In those circumstances Mr Durack applies that I make an order pursuant to r.13.10 of the Federal Circuit Court Rules 2011 (Cth) (FCC Rules) that I dismiss the proceeding. The ground of the application is the applicants have no reasonable prospects of successfully prosecuting the proceeding that is before me, and because, subject to one exception to which I will return in a moment, the basis on which the application is made is said to be the same as the basis on which the applicants in this proceeding sought to set aside the judgment in the other proceeding.

6. Mr Durack has referred me to the affidavit that has been filed in this proceeding in support of the application, and it is clear from that affidavit that the matters on which the applicants rely to set aside the bankruptcy notice are the same, or at least substantially the same, as the matters on which they relied in their application to set aside the judgment.  Given I have found in my reasons for judgment which I published on 28 June 2019 that there was no reasonable prospects of the applicants in this case setting aside the judgment, it must follow that the applicants in this proceeding have no reasonable prospects of succeeding in that application to set aside the bankruptcy notice.

7. I then turn to the one exception, although, as will be shortly apparent, it is not really an exception at all.  Here, I am referring to the actual grounds stated in the application on which the applicants rely to set aside the bankruptcy notice.  What is there relied on is s.41(7) of the Bankruptcy Act 1966 (Cth). That subsection refers to the making of an application to set aside a bankruptcy notice on the ground that the debtor has a counter-claim, set-off, or cross-demand. Mr Durack correctly has submitted that there is nothing in the affidavit that the applicants have filed which could reasonably suggest any counter-claim, set-off, or cross-demand.  In those circumstances, I am satisfied that the applicants do not have reasonable prospects of successfully prosecuting this application to set aside the bankruptcy notice.

8. I am also asked to make an order dispensing compliance with r.13.09 of the FCC Rules, which provides that an application for judgment or for an order that a proceeding be stayed or dismissed must be made by filing an application in accordance with the approved form. One matter which might be of concern is that the respondent has not given the applicants notice of his intention to apply to dismiss the proceeding on the ground that it discloses no arguable case. That, however, does not pose a difficulty because I am satisfied the Court has power under r.13.03C(1)(c) of the FCC Rules to dismiss the application because there is no appearance by or on behalf of the applicants. I am satisfied that the applicants had notice of today’s directions hearing.

9. In those circumstances, although in my opinion the applicants do not have reasonable prospects of prosecuting the application, I am satisfied that it is appropriate that I make an order under r.13.03C(1)(c) of the FCC Rules dismissing the application. I will also order that the respondent provides a copy of these orders to the applicant, together with a copy of r.16.05 of the FCC Rules.

10. The respondent also applies for an order for costs as agreed or as assessed or taxed.  There is no reason why costs should not follow the event, and I propose to make an order for costs as sought by Mr Durack. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 July 2019