Magar v Perpetual Nominees Limited - [2011] FMCA 206

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAGAR v PERPETUAL NOMINEES LIMITED

[2011] FMCA 206

BANKRUPTCY – Application to set aside bankruptcy notice – non-appearance by applicant – application dismissed.

Federal Magistrates Court Rules, r.13.03C

Applicant:

ADIL AZIR MAGAR

Respondent:

PERPETUAL NOMINEES LIMITED (ACN 000 733 700) AS CUSTODIAN FOR THE PREMIUM INCOME FUND

File Number:

SYG 355 of 2011

Judgment of:

Barnes FM

Hearing date:

18 March 2011

Delivered at:

Sydney

Delivered on:

18 March 2011

REPRESENTATION

Applicant:

No appearance

Counsel for the Respondent:

Mr R D Marshall

Solicitors for the Respondent:

Middletons

ORDERS

There be no adjournment of these proceedings.
There being no appearance by the applicant, the application of 1 March 2011 to set aside Bankruptcy Notice NN5637 of 1 December 2010 is dismissed.
The applicant pay the respondent’s costs of the proceedings.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 355 of 2011

ADIL AZIR MAGAR

Applicant

And

PERPETUAL NOMINEES LIMITED (ACN 000 733 700) AS CUSTODIAN FOR THE PREMIUM INCOME FUND

Respondent

REASONS FOR JUDGMENT

(Revised From Transcript)

Before the court is an application filed on 1 March 2011 by the applicant Mr Magar seeking that Bankruptcy Notice NN5637 of 1 December 2010 served on the applicant on 8 February 2011 be set aside.
The matter came before me as the duty Federal Magistrate on Tuesday 15 March 2011. On that date the parties indicated that they were ready to proceed. As there was no time available on that day I offered the parties either Thursday 17 March or Friday 18 March 2011. Mr Magar expressed a preference for Friday 18 March 2011. The respondent was agreeable and the matter was listed for hearing today at 10.15am. Mr Magar indicated that he was available today.
Mr Magar was not present when the matter was called today. This morning the Registry received by facsimile a handwritten note, apparently from Mr Magar, which has been passed on to me. It is apparent from this handwritten note that Mr Magar seeks an adjournment of the hearing. The note states that following a telephone call to the Registry, Mr Magar is unable to attend because he has “to be in another court this morning”. There is no indication of what those other court proceedings are or when the matter that he says he has to attend was listed. There was no reference to any such other obligation when the matter was before me on 15 March 2011 and listed for hearing today.
According to the note, Mr Magar spoke to the solicitors for the respondent. I am informed from the bar table that on Wednesday Mr Magar indicated that he wanted an adjournment of these proceedings. The respondent’s solicitor responded that he needed to get instructions. In a further conversation this morning the solicitor for the respondent advised that the respondent was ready to proceed today and that if Mr Magar did not appear the respondent would apply for dismissal of his application.
In the facsimile, Mr Magar also indicates that he “will” seek a “short” adjournment so that he can be legally represented “because the documents that they handed to the last time in court I was not aware of”. There is no indication in the facsimile of what those documents are. Nor are there any details as to whether Mr Magar has taken any steps to obtain legal representation. He has not filed any application seeking an adjournment. He indicated that he would seek an adjournment to some time after next week because he has “other court matters next week”.
I take this note to be an application for an adjournment and consider it appropriate that I should address it as such, bearing in mind that Mr Magar is self-represented. It is necessary to consider whether any such adjournment is in the interests of the parties and in the interests of the administration of justice.
For the following reasons I am not persuaded that it is in the interests of the parties or the administration of justice that there be an adjournment of the nature sought.
As indicated, on Tuesday 15 March 2011 the matter was listed for hearing today as a date on which Mr Magar said that he would be available. The court was not contacted prior to this morning as far as I am aware. Indeed there is no suggestion of that in the facsimile letter. The respondent has appeared today, having instructed counsel and is ready to proceed with the matter.
This is Mr Magar’s application to set aside a bankruptcy notice. He has not given any details of the claimed “other court” proceedings, or as to why he could not have brought this to the court’s attention earlier or, indeed, as to why he has chosen to be in another court rather than to pursue his own application to set aside a bankruptcy notice.
Insofar as Mr Magar indicates that he seeks an adjournment to be legally represented, there is no evidence as to any steps that he has taken towards obtaining legal representation. There was no suggestion on the last occasion that he would be seeking legal representation. He suggested the need for legal representation related to “documents that they handed to me last time in court I was not aware of …”
Counsel for the respondent has assisted by tendering documents handed to the Registrar (before the matter came to me as duty Federal Magistrate). These include copies of Mr Magar’s own notice of motion and affidavit filed in Supreme Court of New South Wales proceedings 209812 of 2010 seeking that orders dismissing proceedings brought by Mr Magar and two other plaintiffs in that Court (which were dismissed in his absence on 16 February 2011) be set aside. I note from these documents that it is clear that Mr Magar is aware of the possible consequences of non-appearance in a court. Another document is a complete copy of the Bankruptcy Notice. The copy annexed to Mr Magar’s affidavit in support of his application to set aside the Bankruptcy Notice omitted the copy of the judgment annexed to the Bankruptcy Notice. Mr Magar cannot have been taken by surprise by these documents.
Other documents were tendered in court today by counsel for the respondent which relate to the judgment that forms the basis for the Bankruptcy Notice, consisting of a notice of motion filed by Mr Magar in Supreme Court of New South Wales proceedings 2009/00290754 and the judgment of Macready AsJ in that matter delivered on 1 November 2010. Mr Magar later unsuccessfully sought that these Supreme Court proceedings (which were dismissed in February 2011) be transferred to the Equity Division and consolidated with proceedings 209812 of 2010 then before the Supreme Court. The plaintiff (Perpetual) successfully sought summary judgment.
There is no explanation in Mr Magar’s handwritten note sent by facsimile as to why he would not have been aware of the matters to which these documents refer or why he now realises that it is appropriate to seek legal representation.
It was suggested to me that I should have regard to the merits of the application to set aside the Bankruptcy Notice. There is very little before the court in support of the merits. The affidavit filed by Mr Magar simply annexes a copy of a Statement of Claim in the matter that was dismissed in the Supreme Court for non-appearance in February (albeit he has applied to reinstate that matter).
There is no other evidence substantiating the nature of what I take to be an assertion of a counter-claim, set-off or cross demand. There is also a claim that the debt is not presently owing, but there is no explanation of that claim. The material before the court, including the tendered documents to which I have referred, do not suggest that any claim that Mr Magar might have is such that it would be in the interests of the administration of justice that the adjournment that he seeks should be granted.
I also bear in mind the need to consider the efficient use of court resources and time in circumstances where this matter was only listed on Tuesday. On that day Mr Magar said that he was available today and he did not bring any concerns to the attention of the court about obligations elsewhere until this morning, notwithstanding that in his letter to the court he appears to indicate that he would have sought an adjournment as early as Wednesday. He did not do so.
As indicated, Mr Magar cannot have been under any misapprehension that his presence was required here today, having regard to what happened in the Supreme Court proceedings. He has chosen not to appear. There is nothing in the material before the court to suggest any concern about his comprehension of the nature of or listing details for these proceedings, having regard to the content of his original application and affidavit and the fact that on the last occasion he was before the court he confirmed to me that he understood English.
The respondent was ready to proceed last Tuesday. Indeed Mr Magar also said he was ready to proceed on that day. The matter had to be adjourned in order to find time available to the court. Having regard to the nature of this application and all of the circumstances I am not persuaded that it is in the interests of the administration of justice or of the parties to adjourn the hearing.
I will hear from the respondent as to what other orders are sought today.

RECORDED : NOT TRANSCRIBED

The respondent seeks that in the absence of Mr Magar, the proceedings be dismissed for non-appearance pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules. I am of the view that an adjournment is not in the interests of the administration of justice or of the parties. The explanation for non-appearance is not satisfactory. Mr Magar was aware of the hearing time and date and should have been aware of the consequences of not appearing in court proceedings, having regard to the final outcome of the Supreme Court proceedings in which he failed to appear earlier this year. Mr Magar was not present at the time this matter was listed to start and nor is he present now, some 25 minutes later. I consider that it is appropriate that an order be made dismissing the application pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 1 April 2011