Rasevi Pty Limited v Udowenko, in the matter of Udowenko

[2003] FCA 284

FEDERAL COURT OF AUSTRALIA

Rasevi Pty Limited v Udowenko, in the matter of Udowenko [2003] FCA 284

IN THE MATTER OF WOLODYMYR UDOWENKO, MICHAEL UDOWENKO & HELEN UDOWENKO

RASEVI PTY LIMITED (ACN 002 579 286) V MICHAEL UDOWENKO & HELEN UDOWENKO
N 7060 OF 2002

JACOBSON J
26 MARCH 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7060 OF 2002

BETWEEN:	RASEVI PTY LIMITED (ACN 002 579 286) APPLICANT
AND:	MICHAEL UDOWENKO & HELEN UDOWENKO RESPONDENTS
JUDGE:	JACOBSON
DATE OF ORDER:	26 MARCH 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.the notice of motion seeking leave to appeal from the judgment of Lindgren J of 7 February 2003 is stood over until 7 April 2003 at 10.15 am.

2.applicants on the motion (respondents in the proceedings) to file and serve all further evidence and submissions on or before 4 pm 1 April 2003.

3.respondents on the motion (applicants in the proceedings) to file and serve, or at least give notice of, any evidence in reply and submissions on or before noon 4 April 2003.

4.the named respondents, Mr Michael Udowenko and Mrs Helen Udowenko to pay the costs thrown away by today's adjournment including the costs of counsel for the applicant in the proceedings for preparation for the hearing.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7060 OF 2002

BETWEEN:	RASEVI PTY LIMITED (ACN 002 579 286) APPLICANT
AND:	MICHAEL UDOWENKO & HELEN UDOWENKO RESPONDENTS

JUDGE:	JACOBSON
DATE:	26 MARCH 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This matter was listed before me today for the hearing of an application for leave to appeal from a judgment of his Honour, Lindgren J, delivered on 7 February 2003. 

2. The notice of motion seeking leave to appeal was filed on 28 February 2003.  It was supported by an affidavit of Mr John Christopher Gazecki, of Maurice Blackburn and Cashman, who are the solicitors for the respondents.

3. Lindgren J's judgment of 7 February 2003 gave reasons for dismissing a motion brought by the second and third named respondents, Mr Michael Udowenko and Mrs Helen Udowenko seeking to set aside sequestration orders made by Registrar Hedge.

4. There were two issues before Lindgren J.  The first was that it was said that the judgment obtained by the judgment creditor in the Equity Division of the Supreme Court of New South Wales had been fraudulently obtained.  The second issue before his Honour was that it was said that the Bankruptcy Notice had not been served on Mr and Mrs Udowenko.

5. His Honour found that no sufficient cause had been given to go behind the judgment.  His Honour also found that the Bankruptcy Notice had been served on Mr and Mrs Udowenko.  In making that finding, his Honour accepted evidence of the process server, a Mr Adrian Hogan, who was asked questions about his recollection of the circumstances in which the Bankruptcy Notice was served. 

6. The ground on which leave to appeal is sought is that since the hearing and the judgment of Lindgren J, Mr and Mrs Udowenko have obtained fresh evidence which, if accepted, would establish that the Bankruptcy Notice was not served.  Mr Gazecki's affidavit gives evidence on information and belief from Senior Constable Craig Sutton who is said to have been present with Mr Adrian Hogan at the time of service.

7. Mr Gazecki stated in his affidavit that Senior Constable Sutton was willing to swear an affidavit to be filed within 28 days of the date on which Mr Gazecki's affidavit was sworn.  It would follow that the affidavit should have been sworn and filed by the end of this week.  No affidavit has yet been sworn by Constable Sutton, but I was supplied this morning with a draft which was tendered in support of the adjournment application which Mr Gazecki seeks today. 

8. Mr Gazecki seeks an adjournment of the hearing for 14 days.  This is opposed by Mr Marshall of counsel who appears for Rasevi Pty Limited, the judgment creditor.  Mr Marshall opposes an adjournment essentially upon the ground that no adequate explanation has been given to the court today as to why the evidence which Mr and Mrs Udowenko wish to rely upon could not, with reasonable diligence, have been available at the hearing before Lindgren J.

9. Although he did not refer to the case, it is plain that he was referring to a well known decision of the High Court of Greater Wollongong City Council v Cowan (1955) 93 CLR 435. The relevant passage is in the judgment of Dixon CJ at 444. In my opinion there is very substantial force in what Mr Marshall has put to me in opposing an adjournment of the hearing today.

10. An application for leave to appeal on the ground of fresh evidence is a serious application and Mr and Mrs Udowenko and their solicitors should have been in a position to proceed today.  At the very least they should have notified Mr Marshall and his instructing solicitors of their intention to seek an adjournment and to have filed an affidavit in support of the adjournment application dealing with the matters which need to be established in order to satisfy the test referred to in the Wollongong Council case.

11. I do not regard what has been put to me today by Mr Gazecki as a satisfactory explanation for why this matter was not ready for hearing today, or alternatively, as to why an adjournment ought to be granted.  Nevertheless, Mr Gazecki, submits that I ought to grant an adjournment.  He points to the fact that until comparatively recently Mr and Mrs Udowenko were not represented by solicitors or counsel.  He told me from the bar table that Mr and Mrs Udowenko through their solicitors intend to address the matters which have been raised today and to put before the court all relevant evidence in order to have this matter determined.

12. With some reluctance I think that I ought to give Mr and Mrs Udowenko this opportunity, notwithstanding what seems to me to be the failure to properly address this matter for the reasons that I have mentioned above. 

13. Accordingly I propose to grant a short adjournment.  The matter will be listed for hearing before me on Monday, 7 April at 10.15 am.  I have given directions for the filing of affidavits and the delivery of submissions and other relevant material to enable the case to be heard on 7 April 2003.

14. I order the named respondents, Mr Michael Udowenko and Mrs Helen Udowenko to pay the costs thrown away by today's adjournment including the costs of counsel for the applicant in the proceedings for preparation for the hearing.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:             1 April 2003

Counsel for the Applicant:	Mr R D Marshall
Solicitor for the Applicant:	Nash Allen Williams & Wotton
Solicitor for the Respondents:	Maurice Blackburn Cashman
Date of Hearing:	26 March 2003
Date of Judgment:	26 March 2003