Maytom v Warren McKeon Dickson Pty Ltd
[2012] FMCA 1031
•8 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAYTOM v WARREN MCKEON DICKSON PTY LTD & ANOR | [2012] FMCA 1031 |
| BANKRUPTCY – Application to vacate sequestration order made in the absence of the debtor – delay in the application – application treated as one seeking annulment pursuant to s.153B of the Bankruptcy Act 1966 (Cth) – applicant seeking appointment of a litigation guardian due to illness – applicant’s daughter appointed by consent and with her agreement – failure by the litigation guardian to comply with court orders or attend court – dismissal of application for default. |
| Bankruptcy Act 1966, s.153B Federal Magistrates Court Rules 2001 (Cth) |
| Applicant: | GARY MAYTOM |
| First Respondent: | WARREN McKEON DICKSON PTY LTD |
| Second Respondent | JACKSON LALIC LAWYERS PTY LTD |
| Trustee: | MAXWELL WILLIAM PRENTICE |
| File Number: | SYG 1692 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 8 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr J Johnson |
| Solicitors for the First Respondent: | Warren McKeon Dickson |
The appearance of the Second Respondent was mentioned by counsel for the First Respondent
| Solicitors for the Trustee: | Ms S Nash Sally Nash & Co |
The Respondent appeared in person
INTERLOCUTORY ORDERS
The application filed on 5 June 2012 is dismissed, pursuant to rule 13.03B(1) of the Federal Magistrates Court Rules 2001 (Cth).
The respondent creditors’ costs of and incidental to the application incurred since 18 September 2012 are to be paid by Rachel Taylor the applicant’s litigation guardian.
The applicant is to pay the costs of the respondents, up to and including 2 August 2012, such costs order to be as if made at the time of the sequestration order being made, and paid out of the estate.
The trustee’s costs are costs in the administration of the estate.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1692 of 2012
| GARY MAYTOM |
Applicant
And
| WARREN McKEON DICKSON PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application filed by Mr Maytom on 5 June 2012 seeking orders setting aside a sequestration and other orders made against him by the Court on 6 March 2012. The application was filed pursuant to rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules) on the basis that the sequestration and other orders were made in the absence of Mr Maytom.
The matter has had an unfortunate history. Because of delay in the preparation of the application for a hearing I had ordered that the application be treated as an application for annulment pursuant to s.153B of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). This was, in part, to take advantage of the Court Rules relating to annulment applications for the notification of creditors and the filing of information relating to the bankruptcy and also to protect the position of the trustee in the administration of the estate. It became apparent that Mr Maytom was struggling to deal with the application due to ill health and on 31 August 2012 he applied for the appointment of a litigation guardian. That was consented to by the petitioning creditor and on 18 September 2012, pursuant to Part 11 of the Federal Magistrates Court Rules, I appointed Rachel Taylor to be the litigation guardian of Mr Maytom. Unfortunately, that appointment made no difference to the progress in the matter.
I made orders on 2 August 2012 for the preparation of the application for annulment for hearing. Unfortunately, those orders have not been complied with by Mr Maytom and Ms Taylor. The matter was listed for hearing today. The petitioning creditor was represented as was the trustee. In accordance with the Court’s orders, the trustee had submitted a report by affidavit dated 5 November 2012. That report discloses that Mr Maytom’s litigation guardian has not been cooperative with the trustee and a statement of affairs has not been provided. There is very little that the trustee is able to report concerning the bankrupt estate.
When the matter was called this morning Mr Maytom appeared in person without his litigation guardian. He advised the Court that, due to personal problems, Ms Taylor was only then able to leave Newcastle to travel to Sydney to attend court. I decided to adjourn the hearing of the application to 2.15 pm. At that time I was advised that Ms Taylor and another female were at the registry at Queens Square attempting to file documents. I invited Mr Maytom to inform Ms Taylor by telephone that she was expected at court and that I would stand the matter over until 3pm. I also noted that if there was no appearance by Ms Taylor at that time the application might be dismissed.
The matter has been called twice at 3.04pm and 3.30pm and there was no answer to the call by or on behalf of Ms Taylor. I enquired of Mr Maytom whether he wished the Court to dispense with his litigation guardian in view of the circumstances. He replied that he did not. Counsel for the petitioning creditor submits that in view of the non-compliance with the Court’s orders, the protracted nature of the proceeding and the failure of the litigation guardian to attend court, the application should be dismissed. The trustee supports that submission.
Both the creditors and the trustee also seek orders for costs. Mr Maytom’s position, so far as I understand it, is that he has for some time been intent on commencing the proceedings in the Federal Court against one or more orders made by this Court either in these proceedings or in the earlier proceedings resulting in his bankruptcy. That is, of course, a matter for him and his litigation guardian.
In view of the persistent failure of the litigation guardian to comply with the Court’s orders, the inability of the Court to proceed in the absence of the litigation guardian and the failure of the litigation guardian to attend court when she well knew that she was expected, I have concluded that the only course open to the Court is to dismiss the application filed on 5 June 2012.
Having regard to the conduct of the litigation guardian, I have also come to the view that the respondent creditors’ costs of and incidental to the application incurred since 18 September 2012 should be paid by Ms Taylor and I so order. The creditors’ costs incurred prior to the Court’s orders on 2 August 2012 should be treated as if they were costs of the petition.
In relation to the trustee’s costs I will order that those costs be costs in the administration of the estate.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 9 November 2012
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