Maxwell-Smith, in the matter of Maxwell-Smith v S and E Hall Pty Limited

[2001] FCA 767

FEDERAL COURT OF AUSTRALIA

Maxwell-Smith, in the matter of Maxwell-Smith v S & E Hall Pty Limited [2001] FCA 767

IN THE MATTER OF EUGENE AND INGE MAXWELL-SMITH

EUGENE AND INGE MAXWELL-SMITH v S & E HALL PTY LIMITED
N 7226 OF 2001

HELY J
19 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7226 OF 2001

BETWEEN:	EUGENE AND INGE MAXWELL-SMITH APPLICANTS
AND:	S & E HALL PTY LIMITED RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	19 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Any evidence to be filed by the respondent in opposition to the present application should be filed and served by Friday 6 July 2001.

2.Any evidence to be relied upon by Mr and Mrs Maxwell-Smith in response to that material should be filed and served by Friday 13 July 2001.

3.On or before Friday 13 July 2001, the respondent should file and serve a document specifying the grounds upon which it contends that the bankruptcy notice should not be set aside.  That document should refer to any facts upon which reliance will be placed in opposition to the making of the orders which Mr and Mrs Maxwell-Smith seek.

4.The costs of today be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7226 OF 2001

BETWEEN:	EUGENE AND INGE MAXWELL-SMITH APPLICANTS
AND:	S & E HALL PTY LIMITED RESPONDENT

JUDGE:	HELY J
DATE:	19 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application to set aside a bankruptcy notice, upon the basis that Mr and Mrs Maxwell-Smith have a counter-claim or set-off exceeding the sum claimed in the bankruptcy notice, which could not have been set up in the proceedings in which judgment against them was entered.  The applicants have filed affidavits in support of their application and have tendered an Application and a Statement of Claim which they have taken out in this Court against the respondent, S & E Hall Pty Limited, which is returnable, I assume before a Registrar, on Tuesday 17 July 2001.

2. When the matter came on for hearing this morning, Mr Janssen, who appeared for the respondent, ultimately sought an adjournment of the proceedings for a week so that his clients could file some evidence as to what he called the judicial history of this matter.  Mr Maxwell-Smith opposed that application on the grounds that on 22 May 2001 a Registrar of the Court made orders for the applicants to file and serve affidavits by 12 June 2001 and for the respondent to file and serve affidavits by 18 June 2001.  There is no explanation on the part of the respondents as to why evidence was not filed in conformity with that order.

3. Mr Maxwell-Smith put to me that he has to come here from the South Coast, it takes him some time to get here and he should not be forced to come back again before 17 July 2001.  It seems to me that notwithstanding the respondent's failure to comply with the Registrar's order, if substantial justice is to be done between these parties, the respondent should have an opportunity of putting on evidence which would show that the application to set aside the bankruptcy notice is in some way misconceived.  I do not think that a Court can simply act upon the basis of statements made from the Bar Table as to facts, which if properly proven, might make good that proposition.

4. On the other hand, I think that there is force in Mr Maxwell-Smith's contention that he ought not to be forced to come back here again until 17 July 2001.  I think that justice will be best done if I adjourn the application to set aside the bankruptcy notice until 9.30 am on 17 July 2001 before a Registrar.  I will extend the time for compliance with the bankruptcy notice up to and including that date. 

5. I direct:

   (1)that any evidence to be filed by the respondent in opposition to the present application should be filed and served by Friday 6 July 2001.

   (2)that any evidence to be relied upon by Mr and Mrs Maxwell-Smith in response to that material should be filed and served by Friday 13 July 2001.

   (3)that on or before Friday 13 July 2001, the respondent should file and serve a document specifying the grounds upon which it contends that the bankruptcy notice should not be set aside.  That document should refer to any facts upon which reliance will be placed in opposition to the making of the orders which Mr and Mrs Maxwell-Smith seek.

   (4)       The costs of today will be reserved.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             25 June 2001

The applicant appeared in person
Counsel for the Respondent:	Mr B Janssen
Date of Hearing:	19 June 2001
Date of Judgment:	19 June 2001