Norris v PMP Print Pty Ltd
[2007] FMCA 2159
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NORRIS v PMP PRINT PTY LTD | [2007] FMCA 2159 |
| BANKRUPTCY – Review of Registrar’s decision to refuse to set aside bankruptcy notice – application for adjournment – adjournment futile as application enjoys no prospects of success. |
| Bankruptcy Act 1966, ss.41 |
| Applicant: | MICHAEL JOHN NORRIS |
| Respondent: | PMP PRINT PTY LTD |
| File number: | BRG 977 of 2007 |
| Judgment of: | Wilson FM |
| Hearing date: | 21 December 2007 |
| Date of last submission: | 21 December 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| The Applicant in person: | Mr Norris |
| Counsel for the Respondent: | N/A |
| Solicitors for the Respondent: | Shand Taylor Lawyers |
ORDERS
The application for an adjournment is refused.
The application for review be dismissed.
The applicant pay the respondent’s costs of and incidental to the application, to be taxed if not agreed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 977 of 2007
| MICHAEL JOHN NORRIS |
Applicant
And
| PMP PRINT PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 16 November 2007 the applicant filed an application to extend the time for compliance by him with a bankruptcy notice served on him on behalf of the respondent. On 7 December 2007 Registrar Belcher dismissed that application. The applicant has filed an application for review of the Registrar’s decision.
When the matter came before me today, the applicant, who is self-represented, sought an adjournment of the hearing of the application, primarily on the basis that he misunderstood that the matter was to be heard today, and on the basis that he was not prepared to argue the matter on its merits.
Counsel for the respondent opposed the adjournment, principally on the ground that the application for review was doomed to fail. There is no basis for adjourning the application for review if, on the adjourned hearing date, it has no prospects of success. To do so would be simply to delay the inevitable.
On 26 July 2007 the respondent obtained judgment against the applicant in the Supreme Court of Queensland. It did so consequent upon an alleged compromise between the parties. On that day the respondent was given leave to amend its proceedings to allege the compromise, and Daubney J entered judgment against the applicant pursuant to a form of consent under the Uniform Civil Procedure Rules.
The applicant satisfies the requirements of s.41(6A) of the Bankruptcy Act 1966 in that he has issued proceedings to set aside the judgment within the statutorily prescribed time. That enlivens a discretion in the court to extend the time for compliance with the bankruptcy notice.
Section 41(6C) mandates that the court should not extend the time for compliance if it is of the opinion that the proceedings to set aside the judgment or order:
(1) have not been instituted bone fide; or
(2) are not being prosecuted with due diligence.
Those factors, however, are not the only basis upon which an application to extend the time for compliance can be refused. That is, an application can be brought bone fide to set aside a judgment but, as a matter of law, it can be doomed to fail.
In this case, there are two fundamental hurdles confronting the applicant. The first is that, as I understand the material, judgment was entered against the applicant by way of summary judgment, or on the basis of a consent to judgment being entered. It was not a judgment by default. It is difficult to see how, in those circumstances, the applicant could apply to the Supreme Court at first instance to set aside that judgment. The applicant’s only remedy would be by way of appeal.
However, the second hurdle confronting the applicant is more difficult to overcome. Assuming he adopted the correct procedure and appealed against the decision of Daubney J, what prospects would he have on such appeal?
The applicant himself exhibits to his affidavit filed 11 December 2007 two emails which were sent on 21 June 2007. The first contains an offer to settle; the second contains an acceptance of that offer. It is plain from those emails that the applicant’s then solicitor made an offer on the applicant’s behalf to settle the proceedings. He had ostensible authority to do so. That offer was accepted by the respondent’s solicitor. He had ostensible authority to do so. A compromise was reached between the parties. The judgment entered by Daubney J merely reflected that compromise.
Whether or not there is any arguable dispute between the parties as to whether or not the debt claimed to be owing by the respondent is in fact owing becomes redundant once a compromise has been made of the parties’ dispute. Nothing has been put before the court to suggest that that compromise can in any way be impeached.
In those circumstances, I conclude that the applicant enjoys no prospects of overturning the judgment entered against him on 26 July 2007. As the only basis advanced for an extension of time to comply with the bankruptcy notice was to enable an application to be made to set aside the judgment, it follows that the application for extension of time must be refused. In those circumstances, there is no point granting an adjournment of the application for review as, in my view, it is doomed to fail.
I accordingly refuse the application to adjourn the application for review: I dismiss the application for review: I order the applicant to pay the respondent’s costs of an incidental to the application to be taxed if not agreed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Wilson FM
Associate: Lynnette Chin
Date: 31 March 2008
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