Nelson v Ji
[2015] FCCA 3573
•14 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NELSON & ANOR v JI | [2015] FCCA 3573 |
| Catchwords: BANKRUPTCY – PRACTICE AND PROCEDURE – Application for adjournment. |
| Applicants: | SIMON PATRICK NELSON & ANTHONY ROBERT CANT (IN THEIR CAPACITY AS TRUSTEES OF THE ESTATE OF YE LIN LU, A BANKRUPT) |
| Respondent: | QINGHUA JI |
| File Number: | MLG 2167 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 14 December 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 14 December 2015 |
REPRESENTATION
| Counsel for the Applicants: | Ms C. Rome-Sievers |
| Solicitors for the Applicants: | Karavias & Associates |
| Counsel for the Respondent: | Mr J. Tesarsch |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Trial of the proceeding fixed for 14 December 2015 be adjourned to a date to be fixed by the Court not before 29 February 2016.
On or before 4:00pm on 8 February 2016, the Respondent file and serve:
(a)An amended Notice Stating Ground of Opposition; and
(b)Any further affidavit material on which she intends to rely.
On or before 4:00pm on 26 February 2016, the Applicants file and serve any further affidavit material on which they intend to rely.
In default of compliance with paragraph 2 above, that the Respondent’s Notice Stating Grounds of Opposition filed 4 June 2015 be struck out and that judgment be entered in favour of the Applicants and orders be made in the terms of the attached orders pursuant to Rule 13.03B of the Federal Circuit Court Rules 2001.
Until further order the Respondent by herself or by her servants or agents shall not:
(a)Give, grant, dispose of or allow any further interest/s or further encumbrances/s over the property located at 820 High Street, Kew, Victoria 3101 (being all that land described in Certificate of Title Volume 5369 Folio 639( [the “Property”];
(b)Charge or further mortgage the Respondent’s interest in the Property;
(c)Sell or attempt to sell the Property; or
(d)Take any steps to remove the Applicants’ Caveat registered on the title of the Property.
Until further order the Respondent shall:
(a)Pay all loan instalment repayments required to be made under by the mortgagee of the Property;
(b)Maintain the Property in a reasonable standard of upkeep (fair wear and tear excepted);
(c)Pay all outgoings, taxes, charges, rates and utility consumption charges in respect of the Property; and
(d)Allow the Applicants or their servants or agents access to the Property for the purposes of inspection on the giving of 2 days’ notice.
The Respondent is liable to the Applicants on an indemnity basis for any loss of value or other loss and damage suffered or sustained by the Applicants as a result of:
(a)The Respondent’s attempts to sell the Property including but not limited to any previous contract of sale; and/or
(b)Any act or omissions of the Respondent in breach of Paragraphs 5 or 6 of this Order.
The Respondent’s Application in a Case filed 11 December 2015 be otherwise dismissed.
The Respondent shall pay to the Applicants on or before 21 December 2015 the Applicants’ costs thrown away by reason of the adjournment and the costs of the Respondents’ Application in a case filed 11 December 2015 on an indemnity basis fixed in the sum of $17,600, in default of which payment:
(a)The Respondent’s Notice Stating Grounds of Opposition filed 4 June 2015 be struck out; and
(b)That judgment be entered in favour of the Applicants and orders made in the terms of the attached orders pursuant to Rule 13.03B of the Federal Circuit Court Rules 2001.
That there be liberty to apply.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2167 of 2014
| SIMON PATRICK NELSON & ANTHONY ROBERT CANT (IN THEIR CAPACITY AS TRUSTEES OF THE ESTATE OF YE LIN LU, A BANKRUPT) |
Applicant
And
| QINGHUA JI |
Respondent
REASONS FOR JUDGMENT
By an application filed on 28 October 2014, the applicant trustees of the bankrupt estate of Ye Lin Lu seek in substance a declaration or finding that they have a half interest in the residential property known as 820 High Street, Kew, which is registered in the sole name of the bankrupt’s wife, the present respondent to the application, Mrs Ji. The applicants assert a half interest in the Kew property on various grounds, including by way of a resulting trust or a constructive trust. Mrs Ji opposes the application and has filed notice of grounds of opposition dated 16 March 2015.
The two day hearing of the present application was to commence today when Ms Rome-Sievers of Counsel appeared on behalf of the applicants and Mr Tesarsch of Counsel appeared for the respondent. Counsel appeared in the background of an indication to the court on 10 December 2015 that the respondent was going to seek an adjournment of the hearing. The court required a written application seeking the adjournment and an affidavit in support and an application in the case seeking the adjournment was filed on 11 December with an affidavit in support of Mr Danny Karavias (solicitor for the respondent) of the same date. That affidavit was supplemented by a further affidavit sworn by him on 13 December.
Ms Rome-Sievers read in opposition to the adjournment application an affidavit of Mr David Alan Baker (solicitor for the applicants) of 11 December 2015. Both parties handed up helpful outlines of submissions both for and against the adjournment. The basis for the adjournment was initially put on two grounds. The first ground was that there were problems associated with the vacation of the original hearing date for the application of 3 and 4 December and the re-setting down of the application for hearing today, associated with problems in obtaining a new solicitor for the respondent and perhaps the ill health of her solicitor. Also was mentioned a breakdown in the relationship of solicitor and client between the respondent and Mr Karavias.
In the end, however, it boiled down to a contention by new counsel for the respondent that he had identified evidence that the respondent should have put on, but had not. The fact of the matter, of course, is that this situation occurs from time to time and in the context of this case I find the point raised by counsel for the respondent to be a credible one because, on my reading of her affidavit, there does seem to be a paucity of evidence in support of her defence to the applicants’ claim.
I first record that I would not have granted any adjournment on the basis of the facts deposed to in paragraphs 2 to 13 of the first affidavit of Mr Karavias in support of the application for adjournment sworn on 11 December 2015. Further, I record that none of the problems said to occasion the necessity for an adjournment lie at the fault of the applicants. Further, there has been a history of default by the respondent in putting on her evidence and, in my view, her lawyers, prior to new counsel for the respondent, should have been aware that their client’s evidence should have been supplemented.
Indeed, in paragraph 12 of her judgment of 29 September 2014 in the Supreme Court of Victoria, in proceeding number 4797 of 2014, Ferguson J, in relation to an application concerning a caveat the trustees have placed over the Kew property, had noticed and spoken of the sketchiness of evidence that Mrs Ji had put on as to the circumstances of the acquisition of the Kew property. Yet this sketchiness was carried through and into her only affidavit made in this proceeding to date, being that of 15 June 2015.
It has been submitted by counsel for the applicants that there should be no grant of an adjournment because on the basis of the evidence that the applicants have led to date, the evidence that Mr Tesarsch has foreshadowed would be neither relevant nor admissible and that this meant that any adjournment to put on the proposed evidence would constitute a futility and a waste of time and, accordingly, the application for the adjournment should not be granted.
I indicated in debate that I would not be prepared at this point in the case to make an assumption that the proposed evidence would be irrelevant, inadmissible or of no probative value. Counsel for the applicants also relies on the other matters that she has set out in her written submissions as to why the adjournment should be refused and I will not further detail them at this point.
I find this a difficult adjournment application. There is much force in all the points made by counsel for the applicant in aid of her argument that the adjournment should be refused. Her clients are not to blame in any way for any problems in the respondent’s case and are ready to proceed today. The application has been set down for a two day hearing, which is not particularly common in this court. However, the court seeks to do individualised justice between the parties and this remains the priority of the court. On the other hand, there is a public interest in the proper and efficient use of the court’s resources and the claims of other litigants.
In the end, I have to make a discretionary decision, attempting to do the best justice possible to each party. In the end, it seems to me that no personal blame can be ascribed to the respondent for the failure to have put on the sort of evidence now identified by Mr Tesarsch as being required to be put on in the interests of her defence to the applicants’ claim. If the nature of the reason for the adjournment had resulted from any personal failure or dereliction on her part, then I would have had no hesitation in refusing it.
Accordingly, the result is that on terms I am reluctantly prepared to adjourn the hearing. I have identified some of the terms earlier in debate between counsel. I re-identify them. First, as stated in paragraph 7 by Mr Tesarsch in his written submissions in favour of the adjournment, the respondent recognises that she has to pay costs. She must pay the costs thrown away by the adjournment and that must be on an indemnity basis and in a sum which I will set. Such costs seem to me to be required to be paid within seven days, perhaps, if Ms Rome-Sievers desires it, accompanied by an undertaking to the Court that they will be so paid. There is the issue of the caveat which the trustees have put on and there needs to be, I think, an undertaking that there will be no step taken by the respondent to remove that caveat, and there may be other requirements to protect the trustees’ position that Counsel for the applicants’ identify and at this point of the case, I will now ask Counsel to tell me how things have transpired in their negotiations over the last hour and a half or so.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 14 December 2015
1
0
0