Sims v Suda Ltd (No.4) - [2016] FCCA 3338

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMS v SUDA LTD (No.4)

[2016] FCCA 3338

Catchwords:
BANKRUPTCY – Application for review of Registrar’s decision to issue sequestration order – application for adjournment.

PRACTICE AND PROCEDURE – Adjournment sought on basis of earlier interlocutory judgment re discovery – factors for consideration on adjournment application.

Legislation:

Bankruptcy Act 1966 (Cth), s.52
Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 45
Federal Circuit Court Rules 2001 (Cth), r.1.03
Federal Court Act 1976 (Cth), s.24(1A)

Cases cited:

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Baker v Perpetual Trustee Company Limited [2012] FCA 553; (2012) 204 FCR 593
Fair Work Ombudsman v Kentwood Industries Pty Ltd [2010] FCA 98
Goodall v Nationwide News Pty Ltd [2007] FMCA 218
Nyoni v Chee Koon Hee(No.2) [2014] FCA 83
Re Svir; Ex parte Commissioner of Taxation (1998) 83 FCR 314; (1998) 39 ATR 113; (1998) 154 ALR 710
Sims v Suda Ltd (No.2) [2016] FCCA 2781
Sims v Suda Ltd (No.3) [2016] FCCA 3302
The Director of the Fair Work Building Industry Inspectorate v Linkhill Pty Ltd (No.3) [2013] FMCA 165

Applicant:

DOUGLAS ARTHUR SIMS

Respondent:

SUDA LTD

File Number:

PEG 448 of 2016

Judgment of:

Judge Lucev

Hearing date:

1 December 2016

Date of Last Submission:

1 December 2016

Delivered at:

Perth

Delivered on:

21 December 2016

REPRESENTATION

For the Applicant:	In person
Counsel for the Respondent:	Mr M A MacLennan

Solicitors for the Respondent:	Bennett+Co
For the Trustee in Bankruptcy:	Mr G B Dudley (the Trustee in Bankruptcy)

ORDERS (made on 1 December 2016)

That the applicant’s application in a case for an adjournment be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 448 of 2016

DOUGLAS ARTHUR SIMS

Applicant

And

SUDA LTD

Respondent

REASONS FOR JUDGMENT

Adjournment application

On 29 November 2016, Mr Sims filed an application in a case for an adjournment of his application for review of a decision of a Registrar of this Court to issue a sequestration order against Mr Sims’s estate. The adjournment application was opposed by the respondent, Suda Ltd. At hearing the Court dismissed the adjournment application and indicated that its Reasons for Judgment would be set out in a written judgment in due course. Ordinarily, it might be unnecessary to set out reasons for refusing an adjournment in a written judgment, but the Court, given the litigation history between these parties, both in this Court and elsewhere, considered it prudent to do so. These are those Reasons for Judgment.
The basis on which the adjournment was sought was that Mr Sims has applied for leave to appeal this Court’s judgment in Suda Ltd (No. 2) [2016] FCCA 2781 (“Sims (No. 2)”) in which Mr Sims sought discovery of certain documents for the purposes of his application for review (which has since been decided by this Court dismissing the application for review:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sims v Suda Ltd (No.4)

Details

AGLC: Sims v Suda Ltd (No.4) [2016] FCCA 3338
Case: [2016] FCCA 3338
Decision Date: 21 December 2016

CaseChat Overview and Summary

Sims v Suda Ltd (No.4) concerned an application for review of a Registrar's decision to issue a sequestration order against the applicant, Sims. The application for review was brought before Luce J of the Supreme Court of Western Australia.

The primary legal issue before the Court was whether the sequestration order should be set aside or, alternatively, whether the hearing of the application for review should be adjourned. The applicant sought an adjournment on the basis of an earlier interlocutory judgment concerning discovery, arguing that the outcome of that judgment was relevant to the sequestration proceedings.

Luce J considered the principles governing applications for adjournment in the context of bankruptcy proceedings. His Honour noted that while the Court has a broad discretion to grant an adjournment, such discretion must be exercised judicially, taking into account all relevant circumstances. The Court weighed the applicant's need for further information or clarification arising from the discovery judgment against the creditor's right to have the sequestration proceedings resolved expeditiously. The Court also considered the potential prejudice to both parties if an adjournment were granted or refused.

Ultimately, Luce J determined that an adjournment was not warranted in the circumstances. The Court made orders dismissing the application for review and affirming the Registrar's sequestration order.

Orders