Moussa v Commonwealth Bank of Australia
[2010] FMCA 661
•12 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOUSSA v COMMONWEALTH BANK OF AUSTRALIA | [2010] FMCA 661 |
| BANKRUPTCY – Hearing not denied – no right to legal representation – denial of adjournment not denial of natural justice. |
| Applicant: | MARIO MOUSSA |
| Respondent: | COMMONWEALTH BANK OF AUSTRALIA |
| File Number: | MLG 197 of 2010 |
| Judgment of: | Turner FM |
| Hearing date: | 12 July 2010 |
| Date of Last Submission: | 12 July 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 July 2010 |
REPRESENTATION
| The Applicant appeared In Person |
| Solicitors for the Respondent: | Gadens Lawyers |
ORDERS
The Application for Review filed 22 June 2010 is dismissed.
The applicant pay the respondent’s costs fixed at $1,100.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 197 of 2010
| MARIO MOUSSA |
Applicant
And
| COMMONWEALTH BANK OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
(Delivered Ex tempore and Revised)
The applicant in this matter alleges that he was denied an adjournment by Registrar Luxton on 1 June 2010 and that therefore, he was denied natural justice.
The applicant was given every opportunity to appear before Registrar Luxton.
Shortly before that hearing on 1 June 2010, the applicant went overseas for two weeks in the knowledge that he did not have legal representation arranged for the hearing on 1 June 2010.
He returned from overseas around 18 May 2010, then sought legal aid and asked legal firms to represent him. That legal representation was denied to him.
He appeared before the Registrar on 1 June 2010 and had an opportunity thereby to present his case.
It is not a denial of natural justice for the Registrar to proceed with the hearing without the applicant having legal representation. Mr Moussa was not denied a hearing.
The Court finds that Mr Moussa had every opportunity to seek legal representation but was unable to arrange that.
He was on notice since 13 April 2010 that the matter was listed on
1 June 2010. He had a full opportunity to present his case. Registrar Luxton did not deny the applicant a fair hearing by failing to grant an adjournment on 1 June 2010.
An applicant’s lack of funds to get legal advice is not a compelling reason for granting an adjournment.
The applicant alleges he could not file an affidavit in support of his defence on time. The Court rejects that submission. The applicant has filed an affidavit in support of the application today and there is no reason why an affidavit could not have been filed in support of his defence before the Registrar.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 30 August 2010
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