Trustee of the Toowoomba Sports Ground Trust v HAGAN
[2006] FMCA 596
•26 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRUSTEE OF THE TOOWOOMBA SPORTS GROUND TRUST v HAGAN | [2006] FMCA 596 |
| BANKRUPTCY – Petition lapses whilst judgment reserved – no application for extension of time under s.52(5) and no explanation offered for failing to do so – court has power to extend in conformity with decision in Boral Resources (Qld) Pty Ltd v Griffiths (No. 2) 2005 FMCA 1340 but decides not to exercise discretion to do so in this case. |
| Applicant: | TRUSTEE OF THE TOOWOOMBA SPORTS GROUND TRUST |
| Respondent: | STEVEN HAGAN |
| File Number: | BRG 692 of 2004 |
| Judgment of: | Baumann FM |
| Hearing dates: | 23 August 2005, 3 February 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 26 April 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Gilshenan & Luton Lawyers |
| Solicitors for the Respondent: | Drakopoulos Black Solicitors |
ORDERS
That the Creditor’s Petition filed 30 November 2004 be dismissed.
That there be no order as to costs.
THE COURT DIRECTS:
That any further Creditor’s Petition filed in this Court by the Creditor against the Debtor be listed for hearing before FM Baumann.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 692 of 2004
| TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST |
Applicant
And
| STEVEN HAGAN |
Respondent
REASONS FOR JUDGMENT
On the 23 August 2005 I heard a Contested Creditor’s petition filed on 30 November 2004 by the Creditor described as “Trustees of the Toowoomba Sports Ground Trust”. The Debtor is STEVEN HAGAN.
After the hearing, supplementary submissions were fled on the
1 September 2005 (the Respondent) and 2nd September 2005 (the Applicant). I reserved my decision.
Shortly prior to the delivery of reasons scheduled (and advised to the parties legal representatives) for 3 February 2006, my Associate received correspondence from the Solicitors for the Petitioning Creditor saying inter alia:-
“ As a minor technical issue we note that prior to the Decision being handed down the petition lapsed on 30 November 2005.”
A copy of the correspondence was quite properly provided to the Solicitors for the Debtor.
Accordingly on 3 February 2006, rather than hand down the decision, I sought further written submissions from the parties to be filed and exchanged.
At that time, I also provided the parties with a copy of my decision in Boral Resources (Qld) Pty Ltd v Griffiths (No.2) 2005 FMCA 1340. I indicated to the parties at that time that my decision in BORAL is under Appeal to the Full Court of the Federal Court and was initially scheduled to have been heard by now.
I understand that the hearing before the Full Court will not take place now until the May sittings of the Court in Brisbane. I considered the possibility of delaying further my decision pending the verdict from the Full Court, however I have decided that further delay in this matter is not warranted.
I have duly received, and considered the further written submissions on the issue which arose. Not surprisingly the Applicant relies upon my decision in BORAL and the authorities of the Federal Court which I relied upon in my decision.
The Respondent asserts in Summary that the Federal Magistrates Court “does not have recourse to the “sliprule” referred to in the Federal Court authorities” and that therefore “it cannot avail itself of a corrective remedial order having respective effect”.
In the absence of the view of the Full Court of the Federal Court being known, I see no reason to depart from the decision I have made in BORAL that the effect of Rule 1.05(2) of the Federal Magistrates Court Rules and s.43(2)(b) of the Federal Magistrates Court Act enables Order 35 Rule 7(3) of the Federal Court Rules to be applied in this Court.
I have, however, in this case decided it would not be proper to exercise the discretion to extend the petition. No evidence was offered by the Applicant as to why no Application to extend the petition was made. The matter having been reserved on 23 August 2005 (with further submissions made by the Applicant on 2 September 2005) even if the Court’s protocol at that time which required judgment within three month of the final submissions, the petition would have lapsed by operation of s.52(5) of the Bankruptcy Act 1966, not having been evoked.
It is not the Court’s responsibility to maintain a “time bar” record of when steps in litigation must be taken by the parties. I acknowledge that I was not aware that the Petition had lapsed until my Associate received the letter the day prior to the delivery of reasons.
It follows that, the Creditor’s Petition lapsed on 30 November 2005. I am therefore required to dismiss the Petition.
I do not regard the circumstances of this case as necessitating an order for costs.
I propose to direct that any fresh petition filed by the Creditors against the Debtor be listed before me. Although fresh argument will be available to parties, I anticipate many of the arguments previously raised in these proceedings will be raised again and it would be, in those circumstances, efficient for the matter be listed for hearing before me.
I made the Orders as set out at the commencement of these reasons.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
Date:
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