Re Olivieri, Ollie Italiano Ex Parte Monte Paschi Australia Ltd (ACN 003 080 868) v Ozdig Pty Ltd (ACN 065 039 947)

[1997] FCA 79

BANKRUPTCY ACT
               NOT FOR GENERAL DISTRIBUTION
                 NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA )
EXERCISING FEDERAL JURISDICTION   )
IN BANKRUPTCY  )       No NG 7030 of 1997
GENERAL DIVISION                 )

Re:OLLIE ITALIANO OLIVIERI

Debtor

Ex parte:MONTE PASCHI AUSTRALIA LIMITED (ACN 003 080 868)

Applicant

OZDIG PTY LIMITED (ACN 065 039 947)

Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:10 February 1997

REASONS FOR JUDGMENT
  (ex tempore)
INTRODUCTION
On 16 January 1997 orders were made by consent in this proceeding.  Order (2) was an order that the respondent ("Ozdig")

"remove such of the items of property listed and identified in the annexure to the Orders made in these proceedings on 3 July 1996 as are located at 1197 The Horsley Drive, Wetherill Park in the State of New South Wales ("the goods") being all goods, plant and equipment at the said location Other than those belonging to Germano Olivieri as per Orders made on 9 July 1996 in the New South Wales Supreme Court Proceedings No 2540 of 1996." (underlining supplied)

Order (3) was that the removal by Ozdig of the goods referred to in order (2) was to commence no later than 20 January 1997 and was to be completed by 10 February 1997.  By order (7) liberty was granted to the parties to re-list the matter on two days' notice. 

Last Friday, 7 February, Ozdig, through its solicitor, was granted leave by me, as Duty Judge, to file in Court a notice of motion returnable today, seeking an extension of time within which to remove the goods. 

FACTS
The applicant ("the Bank") is mortgagee of a property at 1197 The Horsley Drive, Wetherill Park ("the Land").  Certain orders were made by the Supreme Court of New South Wales in a proceeding referred to as "No 2540 of 1996" in relation to seven items of property listed in the schedule to the order which, apparently, belong to the Debtor, Mr Olivieri.  The Bank, as mortgagee exercising power of sale, by contract dated 6 January 1997, has contracted to sell the Land.  The completion date is next Monday 17 February.  The Bank wishes to be sure that by that time all goods, both those of Mr Olivieri and those of Ozdig, will have been removed from the Land.  Of course, Ozdig has not been ordered to remove Mr Olivieri's goods, and, indeed, the consent order made on 16 January specifically excepts Mr Olivieri's goods from those which Ozdig was ordered to remove.
The evidence in support of the motion for an extension of time is found in an affidavit of Isidee Amadio, a director of Ozdig, sworn 7 February, and an affidavit of Ozdig's solicitor, Peter Richard James, sworn 10 February.  The affidavit of Ms Amadio gives an account of the work which has been done towards removing the goods, which, I should note, include substantial plant and equipment, since the making of the order on 16 January.  Ozdig has removed a substantial quantity of the goods but progress has been interrupted by wet weather.  Annexed to Ms Amadio's affidavit are photographs demonstrating the muddy condition of the Land.  There is also annexed to her affidavit a list of the items of goods with ticks against those which have been removed.  The list has been updated by the annexing of a similar list to Mr James' affidavit with crosses against the items removed down to today.

REASONING
In ordinary circumstances, there could hardly be any serious argument against the granting of an extension of time.  However, the evidence suggests that the Bank has always been at great pains to point out the importance of the time fixed for compliance with the orders of 16 January.  Certain correspondence in evidence demonstrates this to be the case.  It has been submitted, on behalf of the Bank, that the time within which a task can be completed depends on the resources which the person undertaking the work is able and willing to engage for the purpose.  In similar vein, in its letter to the
solicitor for Ozdig, dated 6 February, the Bank has suggested that if Ozdig had been more diligent prior to the recent period of rain, the wet weather would not have been so disruptive or delaying.

It may be thought that the Bank would be in a worse position if an extension were denied, than if one were granted.  However, this is not necessarily so, since order (5) made on 16 January provides that if Ozdig does not comply strictly with order (3) (the order requiring that the removal be completed by 10 February), the Bank is to be at liberty to remove the goods and, indeed, to recover its costs of removal, storage and sale.

I will grant an extension of time, but only until next Sunday 16 February 1997, without prejudice to all and any right or claim, which the Bank may have or be entitled to make, for damages, compensation, occupation fee or otherwise.  As well, I will grant each party liberty to apply on three hours' notice.  Accordingly, if a problem develops during the currency of this present week, either party can come quickly back to Court. 

In relation to costs, it seems to me that Ozdig, seeking a concession, in circumstances in which it has been necessary for the Bank to appear, should pay the Bank's costs of the application.
CONCLUSION
The orders of the Court are as follows:  first, I make orders 1, 2 and 3 in form of order amended and initialled by me, dated today and placed with the papers.  I note that the orders are without prejudice to all and any right or claim, which the applicant may have or be entitled to make, for damages, compensation, occupation fee or otherwise.

I certify that this and the preceding 4 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:21 February 1997

Heard:       10 February 1997

Place:       Sydney

Decision:     10 February 1997

Appearances:  Mr G Kourt, solicitor, employed by the applicant, appeared for the applicant (the Bank)

Mr P R James, solicitor, of James Solicitors, appeared for the respondent (Ozdig)