Re: Keane; Ex Parte

[1995] FCA 1185

IN THE FEDER= COURT OF AUSTRALIA ) JUDGMENT \!c ........ ..... I ....

BANKRUPTCY DISTRICT OF VICTORIA No VP 510 of 1995

RE : JOHN ALOYSIUS KEANE

Judgment Debtor

EX PARTE: BOB0 NOMINEES PTY LIMITED

Petitioner

14 August 1995

REASONS FOR JUDGMENT

LOCKHART J.:

This morning, after a lengthy hearing, I declined to adjourn the petition in this matter. When the Court resumed this afternoon at 2.00 pm after a short adjournment at the request of counsel for the debtor, I heard a further application by counsel for the debtor to adjourn the petition. Only one additional ground has been advanced in support of this application, namely, that counsel for the debtor informs the Court that he is not properly instructed, that he has sought instructions, but they have not been forthcoming, due it is said, to the absence of the debtor in Ireland and the inability to get in touch with him.

Counsel says that to proceed further with the hearing of the petition today would be, as he put it, a charade, because he would simply not be able properly to conduct the debtor's case. As I mentioned this morning, the case has two streams to it. The first is the County Court/~upreme Court stream whereby the initial default judgment has been the subject of

challenge, firstly in the County Court with a view to setting it aside on the part of the debtor, and then in the Supreme Court, in essence, to set aside the judgments and orders of two judges of the County Court. The other stream is whether the debtor is indebted to the petitioning creditor as claimed by the petitioning creditor. That issue has been present at all material times, and certainly since the filing of the grounds of opposition by the debtor. Thus, fundamentally the debtor and the petitioning creditor have to deal with the issue of whether the debt is, in fact, due and owing or not. Indeed, that issue has been addressed by both parties, following directions given by a Registrar. The debtor himself filed an affidavit sworn by him and that was responded to by

M r Szanto on behalf of the petitioning creditor.

I sympathise with counsel who says he is unable to conduct the matter without proper instructions, but it is not fair in all the circumstances that this should penalize the petitioner. Parties cannot assume tht when a petition is listed for hearing their adjournment applications will succeed, especially in the absence of proper evidence to support them. I take into account the possibility that, if successful, the Supreme Court proceeding could lead to the default judgment being set aside. That is but one circumstance (albeit an important one) to take into account in deciding whether or not to adjourn the hearing of the petition. Accordingly, I decline to adjourn the petition and

will now proceed to hear the petition.

I certify that this and the preceding two

(2) pages are a true copy of the reasons

for judgment herein of the Honourable

Justice Lockhart.

Associate

Dated:

Counsel for the Judgment Debtor	Mr D Perkins
Solicitors for the Judgment Debtor :	C o r r s C h a m b e r s
Westgarth
Counsel for the Petitioner	MS J Davies
Solicitors for the Petitioner	Trumble Szanto Braham
Date of Hearing	14 August 1995
Date of Judgment	14 August 1995