New Age Constructions (NSW) Pty Ltd v Etlis

[2013] FCA 712

FEDERAL COURT OF AUSTRALIA

New Age Constructions (NSW) Pty Ltd v Etlis [2013] FCA 712

Citation:		New Age Constructions (NSW) Pty Ltd v Etlis [2013] FCA 712
Parties:		NEW AGE CONSTRUCTIONS (NSW) PTY LTD v LANA ETLIS (AKA SVETLANA ETLIS) and JOSEPH LOEBENSTEIN
File number:		NSD 2221 of 2012
Judge:		YATES J
Date of judgment:		22 July 2013
Date of hearing:	22 July 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr S Golledge with Mr H Durack
Solicitor for the Applicant:	McGrath Solicitors
Counsel for the First Respondent:	Mr D McAloon
Solicitor for the First Respondent:	B2B Lawyers
Counsel for the Second Respondent:	Mr I Cull of ICA Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2221 of 2012

BETWEEN:

NEW AGE CONSTRUCTIONS (NSW) PTY LTD
Applicant

AND:

LANA ETLIS (AKA SVETLANA ETLIS)
First Respondent

JOSEPH LOEBENSTEIN
Second Respondent

JUDGE:	YATES J
DATE OF ORDER:	22 JULY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The first respondent file and serve any affidavit material on which she proposes to rely, by 4.00 pm on 26 July 2013.

2.The applicant and the second respondent file and serve any responding affidavits to any affidavits filed by the first respondent, by 4.00 pm on 9 August 2013.

3.The first respondent pay any costs thrown away by the granting of the adjournment today.

4.The applicant be granted leave to amend its amended application by adding a claim for relief under s 222(10) of the Bankruptcy Act 1966 (Cth).

5.The matter stand over for hearing on 19 August 2013 at 10.15 am.

THE COURT NOTES THAT:

6.Until further order, the first respondent undertakes to refrain from dealing with any real or personal property having a value of greater than $500.00 without the written consent of the parties or further order of the Court.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 2221 of 2012

BETWEEN:

NEW AGE CONSTRUCTIONS (NSW) PTY LTD
Applicant

AND:

LANA ETLIS (AKA SVETLANA ETLIS)
First Respondent

JOSEPH LOEBENSTEIN
Second Respondent

JUDGE:	YATES J
DATE:	22 JULY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

1. Although I have some significant misgivings about the matter, I propose to grant a short adjournment on condition that, first, the first respondent provide the undertaking which has been foreshadowed and, secondly, that she pay the costs, if any, thrown away by the adjournment today. 

2. I think there is some considerable cogency in the applicant’s submission that the creditors do in fact have notice of the proceeding.  Nevertheless, I have some concern that that is the case in respect of all creditors.  The evidence certainly does not satisfy me that all creditors do have the requisite notice. 

3. It seems to me that, in the normal course, notice in accordance with the Rules is an important requirement that would not lightly be waived.  Reliance on the fact that there has been no notice under the Rules is a matter that really lies at the feet of the applicant rather than any other party.  In particular, although the second respondent has acted prudently in seeking to advise creditors of his change of attitude, it does not fall to the second respondent to ensure compliance with the Rules in that particular regard. 

4. I think that there is also some considerable cogency in the applicant’s submission that the evidence that is proposed to be filed may ultimately be found to lack utility, having regard to the issues that are to be decided in this proceeding. 

5. Moreover, to an extent, the first respondent has been on notice that there is a challenge to the claims of some of the unsecured creditors.  In an affidavit proposed to be read, Mr Carollo, a director of the applicant, expresses the belief that certain unsecured claims are false.  However, the basis on which that view is expressed is not articulated in that affidavit nor, so far as I can see, in a subsequent affidavit made by him.  The matter has been enlivened somewhat by the second respondent’s review of material which has given him some cause for concern, as expressed in his second affidavit, which it is anticipated will be read at the hearing of the matter.  The issue as to the trustee’s concerns and his articulation of those concerns has arisen fairly late and does not of itself find expression in the applicant’s own affidavits. 

6. Although I have some doubts about the utility of the evidence that is proposed – given that I will not be deciding whether debts are properly owed – I should not anticipate what that evidence might be.  I am informed that the evidence will be available this week.  On that basis, I am persuaded that, in all the circumstances, a short adjournment should be granted.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate:

Dated:       23 July 2013