Re: Keane; Ex Parte

IN THE FEDER= COURT OF AUSTRALIA ) JUDGMENT

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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

In the Federal Court of Australia, Justice Lockhart presided over a case where Bobo Nominees Pty Limited, the petitioner, sought a bankruptcy order against John Aloysius Keane, the judgment debtor. The central issue in the case was whether the petitioner's claim for debt was valid and whether Keane was indeed indebted to the petitioner as claimed. The case involved two main streams of dispute. The first involved a default judgment from the County Court/Supreme Court, which Keane sought to challenge in two separate judicial forums. The second stream was the fundamental question of whether Keane owed the debt claimed by the petitioner.

Justice Lockhart faced the task of determining whether to adjourn the hearing of the bankruptcy petition, given the debtor's counsel's claim of inadequate instructions due to Keane's absence in Ireland. The debtor's counsel argued that proceeding without proper instructions would amount to a charade and that they could not adequately represent Keane's case. Despite acknowledging the potential for the Supreme Court proceedings to result in the default judgment being set aside, Justice Lockhart concluded that it was not fair to penalise the petitioner due to the debtor's inability to provide timely instructions. Consequently, the Court decided to proceed with the hearing of the petition.

In summary, Justice Lockhart declined to adjourn the petition, emphasising the importance of parties being adequately prepared when a petition is listed for hearing. The Court was mindful of the potential implications of the Supreme Court proceedings but ultimately decided that the petitioner should not be penalised for the debtor's lack of preparation. The Court certified that the reasons for judgment were accurate and proceeded to hear the petition on the same day.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established