PATETE v Anderson

[2016] FCCA 1915

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATETE v ANDERSON [2016] FCCA 1915

Catchwords:
BANKRUPTCY – Review of a Registrar’s decision – dismissal due to non-appearance.

Legislation:

Bankruptcy Act 1966, s.109

Federal Circuit Court Rules2001 (Cth)

Applicant: MELINDA PATETE

Respondent: DAVID ANDERSON

File Number: SYG 2205 of 2015

Judgment of: Judge Dowdy

Hearing date: 22 July 2016

Date of Last Submission: 22 July 2016

Delivered at: Sydney

Delivered on: 22 July 2016

REPRESENTATION

Counsel for the Applicant: Mr S Lipp.

Solicitors for the Applicant: Carlos Toda & Co Commercial Lawyers

No appearance for the Respondent.

ORDERS

I make the following orders:

1. The application for review filed by David Anderson on 16 March 2016 is dismissed under part 13.03C(1)(c) of the Federal Circuit Court Rules2001 (Cth).

2. The applicant for review, being David Anderson, is to pay the petitioning creditor’s costs of the application for review in accordance with the provisions of the Bankruptcy Act 1966 (Cth) (the Act), with such costs to be taxed and paid in accordance with the Act, and those costs to be given the same priority under s.109(1)(a) of the Act as the costs ordered to be paid by Registrar Ng on 25 February 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2205 of 2015

MELINDA PATETE

Applicant

And

DAVID ANDERSON

Respondent

REASONS FOR JUDGMENT

1. There are before me today two applications for review from sequestration orders made by Registrar Ng on 25 February 2016.  Those sequestration orders were made against one David Anderson, and second, his wife, Erika Pravlik.  Matter number 2205 of 2015 was the application for review by David Anderson, and number 2207 of 2015 was the application for review by Erika Pravlik. 

2. The sequestration orders made by Registrar Ng were commenced by presentation of creditor’s petition in each proceeding, and before Registrar Ng the conventional evidence in support of a creditor’s petition based on a failure to comply with a bankruptcy notice was read.  Mr Anderson and Ms Pravlik had filed notices of opposition to their respective creditor’s petitions, but do not appear to have filed any evidence in support of those notices of opposition. 

3. Registrar Ng’s orders comprising the two sequestration orders were, as I have said, made on 25 February 2016. Part 20 of the Federal Circuit Court Rules 2001 (Cth) deals with review of exercise of Registrar’s powers and, in particular, Part 20.02(2) requires in general that an application for review must be listed for a hearing as soon as possible. The applications for review were each filed on 16 March 2016 (out of the required time by some 13 days), but did not come before a Judge of this Court until 10 June 2016. There is no apparent explanation for that delay, and steps have been taken in the Sydney Registry of the Court to ensure that, in the future, applications for review from decisions of a Registrar reach a Judge of the Court very much earlier than they did in this case.

4. Be that as it may, when the matters came before me on 10 June 2016, Mr Lipp of Counsel appeared for the respondent petitioning creditor in each case, and the applicants for review appeared by telephone. They did that because they had earlier communicated to the Court that they were unable to come to Court on 10 June 2016 in person, and they asked for a telephone conference, which request was acceded to. During the hearing on 10 June I pointed out the need for their applications for review to be set down as soon as possible, and I pointed out to them the speed enjoined by Part 20 of the Federal Circuit Court Rules 2001 (Cth). In the result, both applicants were happy for their applications for review to be set down for final hearing within a two to three week period, and they assured the Court that they would be ready, and they would be consulting a barrister, and they would ensure that they had appropriate representation, and that all matters would be in order prior to the date set for hearing, which in the result was today, being 22 July 2016 at 12 noon.

5. Certain orders had been made at an earlier point of time by a Registrar requiring the applicants for review to put on their evidence.  They have failed to comply with those orders.  They have failed to appear today.  Both matters were called outside the Court by my Associate shortly after 12 noon and there was no appearance, and the matters were again called at around 12.25 pm, and there was still no appearance.  In these circumstances, Mr Lipp seeks that the applications for review be dismissed for non-appearance, and that seems to me to be a proper course. 

6. Accordingly, in these circumstances I make the orders set out above.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 22 July 2016