Price v Perso

[2009] FMCA 1270

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PRICE v PERSO [2009] FMCA 1270

BANKRUPTCY – Adjournment.

Applicant: MATTHEW IAN PRICE

Respondent: STEPHEN JAMES PERSO

File Number: BRG 906 of 2009

Judgment of: Wilson FM

Hearing date: 3 December 2009

Date of Last Submission: 3 December 2009

Delivered at: Brisbane

Delivered on: 3 December 2009

REPRESENTATION

Counsel for the Applicant: N/A

The Applicant in person: Mr Price

Counsel for the Respondent: N/A

Solicitors for the Respondent: McDonald Phillips Lawyers

ORDERS

1. That the matter be adjourned to the first available general federal law hearing day in 2010.

2. That the applicant pay the respondent’s costs of and incidental to the adjournment to be taxed if not agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 906 of 2009

MATTHEW IAN PRICE

Applicant

And

STEPHEN JAMES PERSO

Respondent

REASONS FOR JUDGMENT

1. On 27 November 2009, the applicant sought to apply to extend the time for compliance with a bankruptcy notice served on him on 9 November 2009, or to set aside the bankruptcy notice.  The respondent obtained judgment against the applicant in the Local Court at Tweed Heads on 16 June 2009, in the sum of $8677.36.

2. The applicant, it seems, from what he has told me from the Bar table, has three bases for challenging that he is indebted to the respondent.  The first is that he did not contract with the respondent, who is a concreter engaged on a building project, at property owned by the applicant’s father, but rather the respondent was engaged by a builder, who has since become insolvent.  That is, the applicant alleges that he does not owe any moneys to the respondent. 

3. Secondly, it is alleged that insofar as a judgment has been obtained, the applicant intends to appeal that decision, and has instructed his solicitor to file the necessary documents today.  Thirdly, it is alleged that the applicant has a counter-claim against the respondent for allegedly defective work.

4. As is obvious, the first and the third arguments advanced by the applicant are inconsistent, or, perhaps putting it more neutrally, are truly alternative arguments, because if the applicant was not in a contractual relationship with the respondent, he could not have a counter-claim against him.

5. The difficulty for the applicant is that he has a judgment against him, and that judgment is, until set aside, determinative of the issues between the parties.  The applicant, apparently, is lodging documents to appeal the judgment, but given that the judgment was given on 16 June, I suspect that an order will be required for an extension of time within which to appeal, and an explanation will have to be given as to why an extension of time is likely to be granted.  The applicant will also, of course, have to demonstrate that he has a realistic chance of success on appeal.  The evidence before this Court does not address those matters.

6. The documents filed by both parties leave a lot to be desired.  That is explained, at least in part, by the fact that until very recently both were self-represented.  The response filed on behalf of the respondent does not address, at all, the application to set aside or extend time for compliance with the bankruptcy notice.  It is, on its face, meaningless.

7. In the grounds of opposition attached to that document, it seems that the respondent opposes the application for an extension of time, and then sets out some facts which are contended to give rise to a claim against the applicant, and a basis for the judgment having been obtained against him.

8. It seems to me, in the circumstances, where bankruptcy is not truly a right or remedy inter partes, but more in the nature of the interests of all the creditors of the applicant, that the matter should be adjourned to enable both sides to put their material in order.  The matter should not be allowed to linger indefinitely.

9. The respondent submits, quite fairly, that an adjournment will delay the respondent’s entitlement to file a creditor’s petition against the applicant.  However, it seems to me that that prejudice is adequately addressed, at least in the first instance, by the making of an order for costs in the respondent’s favour.  It is not otherwise demonstrated that a short adjournment will prejudice the respondent.  In contrast, if an adjournment is not granted, and the application is dismissed, the inevitable consequence will be that the applicant commits an act of bankruptcy, which may have ramifications far beyond this case.

10. In the circumstances, I will adjourn the matter to the first available general federal law hearing day in 2010.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate:  Lynnette Chin

Date:  15 December 2009