The Owners - Strata Plan No 11478 v James

[2017] FCCA 2963

FEDERAL CIRCUIT COURT OF AUSTRALIA

THE OWNERS - STRATA PLAN NO 11478 v JAMES [2017] FCCA 2963

Catchwords:
BANKRUPTCY – Bankruptcy Act 1966 (Cth) – hearing of Creditor’s Petition seeking a sequestration order – Debtor applies for adjournment – no proper grounds for adjournment – Debtor had ample time to prepare herself for hearing – adjournment application refused.

Legislation:

Bankruptcy Act 1966 (Cth)

Applicant: THE OWNERS - STRATA PLAN NO 11478

Respondent: JENNIFER ELIZABETH JAMES

File Number: SYG 166 of 2017

Judgment of: Judge Dowdy

Hearing date: 29 November 2017

Delivered at: Sydney

Delivered on: 29 November 2017

REPRESENTATION

Counsel for the Applicant Creditor: Mr C. B. O'Neill of Counsel

Solicitors for the Applicant Creditor: Swaab Attorneys

The Respondent Debtor appeared in person.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Debtor’s Application for an adjournment of the hearing of the Creditor’s Petition is refused.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 166 of 2017

THE OWNERS - STRATA PLAN NO 11478

Applicant Creditor

And

JENNIFER ELIZABETH JAMES

Respondent Debtor

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

1. I refuse the application for an adjournment made by the Debtor either for three weeks or at all. It is wholly unsupported by affidavit evidence. The Amended Creditor’s Petition, which has been set down for hearing today, was filed as long ago as 21 February 2017 and the Bankruptcy Notice upon which the Petition is based was served on or about 22 December 2016.  The matter has been before the Court on at least two occasions when Counsel has appeared for the Debtor, who now appears in person and tells me from the Bar Table that she is, or has been, a solicitor.  On 4 August 2017, when Mr Leong of Counsel appeared for the Debtor, I pointed out to him on a preliminary basis the seeming inadequacy of the affidavit of the Debtor of 23 March 2017 to establish solvency.  The Debtor had at that point until 28 August 2017 to file affidavit evidence and I invited Mr Leong to regard that as an opportunity, not simply to file affidavit evidence in reply, but to file further and better evidence of solvency.  That has not occurred but the fact of the matter is that the Debtor has had ample time to prepare her case for this hearing. The only ground of opposition which she raises to the making of a sequestration order is solvency and she has always known that this was an important matter which required evidence to make good her claim of solvency. 

2. The Petitioning Creditor is here, with the benefit of a judgment, and says that it wishes to proceed.  It does not wish to engage in negotiations with the Debtor and that is its right and privilege. Of course, the law is that even if the amount owing was tendered today by the Debtor, the Creditor is not obliged to accept such tender.  I do not consider that it is in the interests of justice that the hearing of the Creditor’s Petition be adjourned.  It would have to be adjourned for a long period of time, having regard to the fact that I am booked out with cases for hearing until mid-2019 and this matter has already been given some degree of priority so as to hear it today.  So, in all the circumstances, it is not in the interests of justice that the matter be adjourned and, accordingly, the hearing will now proceed.   

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date: 29 November 2017