Pleash v Butler; In the Matter of Razzmatazz Pty Limited (No 1)
[2010] FCA 463
•11 May 2010
FEDERAL COURT OF AUSTRALIA
Pleash v Butler; In the Matter of Razzmatazz Pty Limited (No 1) [2010] FCA 463
Citation: Pleash v Butler; In the Matter of Razzmatazz Pty Limited (No 1) [2010] FCA 463 Parties: BLAIR PLEASH v MELVIN THOMAS BUTLER; IN THE MATTER OF RAZZMATAZZ PTY LIMITED ACN 113 244 554 AND THE CORPORATIONS ACT 2001 (CTH) File number: NSD 639 of 2009 Judge: FOSTER J Date of judgment: 11 May 2010 Legislation: Corporations Act 2001 (Cth), s 444B(2) Date of hearing: 11 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 11 Solicitor for the Plaintiff: Mr J Lucas of Etienne Lawyers Solicitor for the Defendant: Mr A Argyropoulos as city agent for Malouf Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 639 of 2009
IN THE MATTER OF RAZZMATAZZ PTY LIMITED ACN 113 244 554 AND THE CORPORATIONS ACT 2001 (CTH)
BETWEEN: BLAIR PLEASH
Plaintiff
AND: MELVIN THOMAS BUTLER
Defendant
JUDGE:
FOSTER J
DATE OF ORDER:
11 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The defendant’s application for an adjournment of the final hearing of this proceeding be refused.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 639 of 2009
IN THE MATTER OF RAZZMATAZZ PTY LIMITED ACN 113 244 554 AND THE CORPORATIONS ACT 2001 (CTH)
BETWEEN: BLAIR PLEASH
Plaintiff
AND: MELVIN THOMAS BUTLER
Defendant
JUDGE:
FOSTER J
DATE:
11 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
When this application was called on for hearing this morning, Mr Argyropoulos, solicitor, announced an appearance as the city agent for Mr Gutzinger of Malouf Solicitors of Parramatta and sought leave to appear for the defendant in order to seek an adjournment of the hearing fixed to commence at 10.15 am today. As of this morning, no Notice of Appearance had been filed by Mr Gutzinger but that omission is explicable by the fact that he apparently received instructions from the defendant for the first time this morning at 9.15 am and has obviously not had time to attend to the filing of a Notice of Appearance.
Mr Argyropoulos has applied for the hearing to be adjourned on the basis that the defendant’s former solicitors have only recently ceased to act, leaving the defendant in a difficult position in respect of today’s hearing. He also submitted that there was a potential for injustice to be visited upon the defendant in those circumstances, although it is fair to say that Mr Argyropoulos was somewhat hamstrung in respect of that submission by not having the benefit of detailed instructions from the defendant or indeed a copy of any of the Court documents.
This proceeding was commenced on 1 July 2009 and remained in the Registrar’s list until December 2009. The proceeding first came before me on 10 February 2010 when I made directions designed to ready the matter for hearing.
The application was fixed for final hearing at the directions hearing which took place on 10 March 2010. On that occasion, the defendant was represented. Included within the orders which I made on that occasion were orders requiring the parties to file an outline of submissions, to confer concerning objections and to notify objections shortly before the hearing. As matters presently stand, I do not know whether there has been any attempt to confer concerning objections nor do I have a list of objections to evidence from either party. I do have an outline of submissions from the plaintiff but nothing from the defendant. The defendant has, therefore, failed to comply with at least one of the directions which I made on 10 March 2010.
The claim of the plaintiff is for an amount of $55,636.65 plus interest based upon obligations said to have been entered into by the defendant under a Deed of Company Arrangement concerning a company called Razzmatazz Pty Limited (the Deed). The plaintiff alleges that the defendant signed the Deed in May 2008 (the precise date upon which he signed the Deed being, on the evidence filed by the parties, a matter of controversy). However, in an affidavit filed, the defendant admitted that he had signed the Deed.
The defendant has filed a Defence in the matter. It seems that the defence is that the Deed was not executed as required by s 444B(2) of the Corporations Act 2001 (Cth) within 21 days of the meeting at which the company’s creditors resolved that such a Deed be executed. It seems that the defendant wishes to contend that, if the assertion made in his Defence were established, he would not be bound by the Deed which he admits, in the affidavit filed by him, he signed.
It seems to me that, in approaching the question of adjournment, I should consider the reasons advanced in support of the application for adjournment as well as the defendant’s prospects of resisting the plaintiff’s claim in the proceeding. Whilst I well understand that Mr Argyropoulos is limited by his instructions and the very short time within which he and his principal have had to present evidence in support of the current application for adjournment, that is not necessarily the case insofar as the defendant himself is concerned.
The case was commenced a long time ago now and has been fixed for hearing since 10 March 2010 (a period of just on two months). It seems to me that I should not accord much weight, if any, to the defendant’s instructions given to Mr Gutzinger and conveyed to me by Mr Argyropoulos from the Bar table given that those instructions have not been supported by any evidence from the defendant or from anyone else. The defendant’s former solicitors appear to have withdrawn from the matter in a fashion which complies with the Rules of Court so that it is difficult to see why the fact of their withdrawal should count for very much in the absence of evidence from the defendant.
As far as the prospects of the defendant in the proceeding are concerned, it seems to me that they are weak. Of course, I have not heard the case yet and have formed that preliminary view only on the material which has been filed (which I have read) and only for the purpose of considering the present adjournment application.
In the end, I am not satisfied that an adjournment is warranted because I am not persuaded that there are good reasons for the defendant himself to be absent this morning and to have failed to support his adjournment application by an appropriate affidavit. Further, I have no evidence as to:
(a)The current state of preparation of the defendant’s case;
(b)What prejudice (if any) may have been caused by his former solicitors’ ceasing to act;
(c)What steps remain to be taken to ready the matter for hearing; and
(d)When the matter would be ready for hearing from the defendant’s perspective.
All that I have been told is that the defendant needs an adjournment. I have also weighed in the balance the fact that, as matters presently stand, his defence appears to be rather weak.
Accordingly, for those reasons, I refuse the defendant’s adjournment application.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 12 May 2010
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