Schmierer v Smith (No.1)
[2004] FMCA 855
•8 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCHMIERER v SMITH (No.1) | [2004] FMCA 855 |
| PRACTICE & PROCEDURE – BANKRUPTCY – Application for adjournment. |
| Applicant: | TREVOR JOHN SCHMIERER AS TRUSTEE OF THE PROPERTY OF THE BANKRUPT ESTATE OF NORMAN DIANO |
| Respondent: | BRIAN SMITH |
| File No: | SYG1571 of 2004 |
| Delivered on: | 8 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 November 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Wells |
| Solicitors for the Applicant: | Thomson Playford |
| Solicitors for the Respondent: | Corporate Business Lawyers Qld |
ORDER
Application for adjournment dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1571 of 2004
| TREVOR JOHN SCHMIERER AS TRUSTEE OF THE PROPERTY OF THE BANKRUPT ESTATE OF NORMAN DIANO |
Applicant
And
| BRIAN SMITH |
Respondent
REASONS FOR JUDGMENT
These proceedings were commenced by way of an application dated 26 May 2004. The first respondent at the time was a Mr Brian Smith and his address for service was said to be care of a firm of solicitors. The time for service for that application was abridged by court order on 26 May 2004. At that time certain interlocutory orders were made that the sum of $102,000 odd being the balance of the proceeds of sale of a property in Queensland be retained in a trust account of a firm of solicitors known as Thynne McCartney Solicitors of level 27, 12 Creek Street, Brisbane until 31 May 2004.
The case itself was set down for directions hearing on 13 September 2004. Prior to that date Mr Smith's solicitors filed a notice of Ceasing to Act. My recollection is that the applicant was unable to find the respondent himself because no address for him had been provided. On that day I ordered that the former solicitors should forward a copy of a letter advising the applicant of a new hearing date for the directions on 22 September 2004 to the respondent and noted that if there was no attendance by him at the adjourned directions hearing the applicant would apply for the defence to be set aside and for orders in accordance with the Statement of Claim dated 25 June 2004 which had been filed.
On 22 September 2004 a solicitor, Mr Zaghini, appeared on behalf of the respondent. Certain orders were made including an order that the applicant was to provide Mr Zaghini with copies of the relevant part of a file of Messrs Canning Kramer Lawyers, who I understand acted in the impugned transaction. Other orders were that the respondent was to file and serve all evidence on affidavit on or before 13 October 2004 and that the respondent was to provide the applicant with a list of all documents to be tendered on or before 27 October 2004. I also ordered that the parties provide an outline of case to my associate on or before 5 November 2004 and set the matter down for hearing on 8 and 9 November 2004.
So far as I am aware no evidence was served by the respondent either on or before 13 October 2004 or at all. I am not sure whether the respondent has provided the applicant with a list of all documents to be tendered and I do not have from the respondent an outline of case. What I did have is a series of facsimile letters which appeared to be demanding that the court, which had set this case down for hearing over two days and reserved those days for the purposes of that hearing, transfer the case to Queensland. Correspondence with courts is always a difficult matter. The proper course of action to have taken would be for the respondent to have made an application in the normal way. That application should have been made some time ago and it would have been heard in Sydney with the benefit of affidavit evidence from the applicant and, if necessary, responses from the respondent to the application.
This was not done and it required several letters before the court appeared to have got through to the respondent’s solicitors that the case had been set down for hearing on this day and any application that he did make may well not be successful and he should be prepared to continue with the proceedings. This morning the court received a telephone call from Mr Zaghini requesting that the application that he intended to make be heard by telephone. The court has reluctantly agreed. Mr Zaghini faxed a letter to the court on 5 November 2004. The letter reads as follows:
“ We refer to our letter faxed today and your response that we should attend in the event our transfer jurisdiction application will not proceed.
There are with respect, three major reasons for an adjournment, not just an issue of transfer:
(1)Is to transfer to a more appropriate jurisdiction for its own two reasons:
(i)The bulk of witnesses reside in Queensland; and
(ii)Queensland law defences apply to Thomson Playford's allegations.
(2)Is on the basis we cannot yet subpoena Ross Murphy. Debra Canning is denying validity of service of her subpoena. We have also subpoenaed Wayne Dennis Sultan, the introductory party of the mortgage transactions who resides in Queensland.
(3)We have to access evidence from Diano to prove he was solvent at the time - he lives in Adelaide.
The last two align more appropriately with the proposition that we cannot responsibly prepare our case without interviewing and gaining evidence from Murphy, Canning and Diano. We also need an adjournment for this matter as well as the jurisdiction issue.
It is too late for us to appoint Sydney agents. An injustice would be done on Brian Smith if we were to proceed without co-operation (forced or otherwise) from Murphy and Canning.
We believe coming to Sydney would not be productive and is premature in presenting any viable case for Smith. In any event even without consideration of the merits or otherwise of the transfer of jurisdiction more fundamental issues as to fact and law have to be properly examined to be well prepared for any hearing.
We submit an adjournment is merited on all above three grounds and that costs be reserved in the cause.”
The overwhelming impression gained from that letter is of a firm of solicitors who had not prepared for hearing. Mr Zaghini was allowed to appear this morning by telephone. By this time he was well aware that if his application did not succeed the matter would proceed. One of the matters raised by him in his oral submissions was that certain parties who had been subpoenaed had either not been served with subpoenas or had challenged the proper service of those subpoenas. These subpoenas were all issued in late October even though the directions hearing which set the date for trial took place on 22 September 2004.
In regard to the one witness who claimed that she was not properly served no application was made in respect of that subpoena and so far as I am aware no further attempts at service were made even though she is a solicitor of the Supreme Court of Queensland. One of the complaints made by Mr Zaghini is that he would wish to cross examine the bankrupt. As I understand it from Mr Wells, who appears on behalf of the applicant today, the bankrupt is available to give evidence.
I am not satisfied that it is in the interests of justice that this matter be further adjourned. The respondent accepted the hearing date that was given on 22 September. He had between 22 September and perhaps a week ago to make a proper application for an adjournment and for transfer, if he believed that was appropriate. He did not do that. He waited until the very last moment. Mr Wells is here, his witnesses are here. The case must proceed. In those circumstances, there is no need for me to consider the other applications which Mr Zaghini wishes to make because those are not before me and this first application for an adjournment was only in order to enable him to put on those further applications.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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