Re: Ward

[1989] FCA 864

IN TAE FEDERAL COURT OF AUSTRALIA	) )
BANKRUPTCY DISTRICT IN THE	)
) No. W 212 of 1988
STATE OF NEW SOUTH WALES AND TFIE	1 1
AUSTRALIAN CAPITAL TERRITORY	1

Re:  TREVOR ALWYN WARD

Ex Parte:  BENEFICIAL FINANCE CORPORATION
LIMITED

CORAM: Einfeld J.
DATE : 7 February 1989

PLACE: Sydney

EX-TEMPORE JUDGMENT

This is an application by the debtor for dismissal of the creditor's

L application for the examination of the debtor, to set aside a

composition and other orders.

by 7 February explaining the reasons.

The creditor has now on two occasions failed to comply with timetables

that have been set by Deputy Registrar Sexton. The excuse that has been

,

given for the second but not the first of these failures to comply with court orders is unsatisfactory. This second order was that affidavits be filed and served by 20 January 1989 but that if there was an inability to comply with that date, that it file and serve an affidavit

I have an affidavit of 6 February 1989 which is said to have been sent by facsimile to counsel for the creditor last evening but was not served at all on the debtor until his counsel saw it today. Although it may be that there was some form of contract between the solicitors for the parties before today, the orders made by Deputy Registrar Sexton on 29 November 1988 were, as I am informed, not complied with.

L In any event the substance of the affidavit of 6 February does not deal with the reasons for non-compliance. It explains that there was a change in the ownership or status of the firm of solicitors who represented the creditor on 1 January. It explains that on 18 January the solicitor who had the conduct of the matter left the employ of the merged firm. It does not explain why nothing was done between 1 January and 18 January by that solicitor.

It then explains that the deponent of the affidavit, the present solicitor for the creditor, assumed the conduct of this matter on 18 January 1988 but he seems to have done nothing about it until 27 January when he had a conversation with counsel for the creditor who appears

today.

Another six days passed before the deponent of the affidavit had a conversation with a man who holds the title of collection manager of the creditor company to arrange a meeting to discuss the matter, but the meeting was unable to be arranged before today, notwithstanding the fact that the Deputy Registrar Sexton had directed that today was the last day upon which the explanation for non-compliance could be given. The deponent of the affidavit, the present solicitor for the creditor, is not in court today and therefore cannot be cross-examined or examined on the further details. He says in his affidavit that he first learned of the timetable fixed by Deputy Registrar Sexton in his conversation on 27 January; yet not only have no affidavits been filed in the eleven days since, but there is no explanation as to why they have not been filed.

I am told that the affidavits are of people in Adelaide but when I last

checked, Adelaide was part of the Commonwealth of Australia in contact with Sydney by a series of communication potentials which should have

L been able to be activated in a period of eleven days.

It seems to me in all the circumstances that the attitude taken by the creditor is and has been extremely casual, without any serious desire to meet timetables twice fixed by the court and on neither time complied with. If the application which the creditor wished to advocate before the court was serious and of substance, I have no doubt that it would have responded long before now with the evidence upon which it sought to advocate the matters sought in that application.

In the circumstances I do not think it appropriate to extend any further indulgences to the creditor and on the application of the debtor I

dismiss the application for want of prosecution and for failure to	comply with the court orders. I order that the creditor pay the
debtor's costs of the application including costs previously reserved by the Registrar and the court.

I certify that this and the T d O

preceding pages are a true copy of the

Reasons for Judgment herein of his Honour

Justice Einfe\d 1

IN THE FEDERAL COURT OF AUSTRALIA

1

GENE= DIVISION No. W 212 of 1988

BANKRUPTCY DISTRICT IN THE	)
I
STATE OF NEW SOUTH WALES AND THE	)
)
AUSTRALIAN CAPITAL TERRITORY	)

- Re: TREVOR ALWYN WARD

Applicant

Ex Parte:  BENEFICIAL FINANCE CORPORATION
LIMITED

Creditor

CORAM: Einfeld J.

DATE : 7 February 1989

- PLACE: Sydney

EX-TEMPORE JUDGMENT

This is an application by the debtor for dismissal of the creditor's

U

application for the examination of the debtor, to set aside a

composition and other orders.

The creditor has now on two occasions failed to comply with timetables	that have been set by Deputy Registrar Sexton. The excuse that has been
given for the second but not the first of these failures to comply with court orders is unsatisfactory. This second order was that affidavits be filed and served by 20 January 1989 but that if there was an inability to comply with that date, that it file and serve an affidavit by 7 February explaining the reasons.
I have an affidavit of 6 February 1989 which is said to have been sent
by facsimile to counsel for the creditor last evening but was not served at all on the debtor until his counsel saw it today. Although it may be that there was some form of contract between the solicitors for the parties before today, the orders made by Deputy Registrar Sexton on 29 November 1988 were, as I am informed, not complied with.
In any event the substance of the affidavit of 6 February does not deal

L.

with the reasons for non-compliance. It explains that there was a change in the ownership or status of the firm of solicitors who represented the creditor on 1 January. It explains that on 18 January the solicitor who had the conduct of the matter left the employ of the merged firm. It does not explain why nothing was done between 1 January and 18 January by that solicitor.

It then explains that the deponent of the affidavit, the present solicitor for the creditor, assumed the conduct of this matter on 18

U January 1988 but he seems to have done nothing about it until 27 January

when he had a conversation with counsel for the creditor who appears

today.

Another six days passed before the deponent of the affidavit had a conversation with a man who holds the title of collection manager of the creditor company to arrange a meeting to discuss the matter, but the meeting was unable to be arranged before today, notwithstanding the fact that the Deputy Registrar Sexton had directed that today was the last day upon which the explanation for non-compliance could be given. The deponent of the affidavit, the present solicitor for the creditor, is not in court today and therefore cannot be cross-examined or examined on the further details. He says in his affidavit that he first learned of the timetable fixed by Deputy Registrar Sexton in his conversation on 27 January; yet not only have no affidavits been filed in the eleven days since, but there is no explanation as to why they have not been filed. I am told that the affidavits are of people in Adelaide but when I last checked, Adelaide was part of the Commonwealth of Australia in contact with Sydney by a series of communication potentials which should have been able to be activated in a period of eleven days.

ii

~t seems to me in all the circumstances that the attitude taken by the creditor is and has been extremely casual, without any serious desire to meet timetables twice fixed by the court and on neither time complied with. If the application which the creditor wished to advocate before the court was serious and of substance, I have no doubt that it would have responded long before now with the evidence upon which it sought to advocate the matters sought in that application.

i, In the circumstances I do not think it appropriate to extend any further

indulgences to the creditor and on the application of the debtor I

dismiss the application for want of prosecution and for failure to	comply with the court orders. I order that the creditor pay the
debtor's costs of the application including costs previously reserved by the Registrar and the court.

I certify that this and the

preceding pages are a true copy of the

Reasons for Judgment herein of his Honour

Justice Einfeld