Vince in his capacity as trustee of the bankrupt estate of Gullquist v Jusbec Pty Ltd as trustee of the Super Fortune Trust
[2021] FCA 497
•11 May 2021
FEDERAL COURT OF AUSTRALIA
Vince in his capacity as trustee of the bankrupt estate of Gullquist v Jusbec Pty Ltd as trustee of the Super Fortune Trust [2021] FCA 497
File number(s): VID 821 of 2019 Judgment of: BEACH J Date of judgment: 11 May 2021 Catchwords: PRACTICE AND PROCEDURE – application for review of Registrar’s decision – application for adjournment – adjournment refused – application for review dismissed – no point of principle – orders made Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 29 Date of hearing: 11 May 2021 Solicitor for the Applicant: Mr M Lhuede of Piper Alderman Counsel for the Respondents: The respondents did not appear ORDERS
VID 821 of 2019 BETWEEN: PETER ROBERT VINCE IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF MICHAEL JOHN GULLQUIST
Applicant
AND: JUSBEC PTY LTD AS TRUSTEE OF THE SUPER FORTUNE TRUST (ACN 109 046 915)
First Respondent
JULIE JOY FORTUNE
Second Respondent
ORDER MADE BY:
BEACH J
DATE OF ORDER:
11 MAY 2021
THE COURT ORDERS THAT:
1.The second respondent’s interlocutory application dated 3 May 2021 be dismissed with costs.
2.The costs referred to in order 1 be fixed in the sum of $4,353.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
BEACH J:
The application before me is an application to review a decision of a registrar of this Court made on 12 April 2021 which was to the effect that the proceedings be adjourned to a case management hearing before the docket judge. This application came before me as the corporations duty judge given that the docket judge was unable to deal with the matter.
In my opinion, the second respondent’s application should be dismissed, with costs to be paid by her.
First, it is misconceived. The registrar of her own volition was entitled to refer the matter to the docket judge under s 35A of the Federal Court of Australia Act 1976 (Cth).
Second, nothing has been shown to demonstrate that her discretion miscarried. In any event, the matter is a rehearing before me.
Third, there is no prejudice whatsoever in the docket judge now dealing with the matter. Indeed, there is every advantage to the parties in now doing so.
Fourth, the only order of the registrar that could be challenged was the adjournment order. Accordingly, paragraphs 2 and 3 of the interlocutory application are simply misconceived.
Fifth, the second respondent on 12 April 2021 made no objection before the registrar to the adjournment over of the proceeding to the docket judge; see [14] and [15] of the affidavit of the applicant’s solicitor sworn on 6 May 2021.
In summary, there is no proper basis to make any orders in favour of the second respondent on her application for review.
Let me say something about the timing of the hearing before me. True it is that I have brought this on quickly. But the matter needs to be disposed of promptly. The matter is again before the docket judge on 13 May 2021 and there are contested applications that need to be disposed of promptly. Further, the principal proceeding was commenced in mid-2019, and there appears to have been little progress in this matter. This is a characterisation, not a criticism.
Now I brought this matter on for hearing last Friday, 7 May 2021, at 4.15 pm.
But at 2.49 pm on that day my chambers was sent an email by Mr Gullquist, who is the husband of the second respondent and an individual associated with the first respondent, attaching a medical certificate for the second respondent which said:
Mrs Julie Fortune has a medical condition and will be unfit to attend court from 05/05/2021 to 28/05/2021 inclusive.
No detail whatsoever was given as to this medical condition, nor any justification for this period.
Moreover, in the email to my chambers it was stated by Mr Gullquist:
As previously advised, I have attached a copy of Julie Fortune’s medical certificate for reference. Julie's doctor considered the details of her present condition confidential and that you were not entitled to them. I think he is correct about that.
I will arrange for her to contact the registry once she is well enough to do so.
None of this was satisfactory. At 2.57 pm on that day, my chambers sent an email to the parties stating:
The certificate is unsatisfactory and the matter will proceed this afternoon. If you or the second respondent wish to join via Microsoft Teams you have been provided with the link.
I should also say that the second respondent was warned by email from my chambers the previous day that whether the matter would be adjourned would depend upon the quality of the certificate. My chambers sent an email to the parties at 5.23 pm last Thursday, 6 May 2021, stating:
To be clear, his Honour will of course consider any medical certificate, but its adequacy and whether it is sufficient to justify an adjournment is another matter.
Moreover, the suggestion in Mr Gullquist’s email at 2.49 pm last Friday that the matter should be adjourned until some time, which appeared to be open ended, after 28 May 2021, was simply unacceptable.
Last Friday, neither of the respondents appeared. In the circumstances and to give the second respondent one further opportunity, I adjourned the matter until 4.15 pm today.
I had my chambers send an email at 4.58 pm on 7 May 2021 notifying of that adjournment. It also said that the respondents could appear via Microsoft Teams if they so chose. Further, the email said that the second respondent could file a short written submission if she preferred.
The email also repeated that, as I had advised before last Friday’s hearing at 2.57 pm (shortly after receiving the medical certificate), the second respondent’s medical certificate was inadequate and no basis to postpone the hearing of the second respondent’s application.
This afternoon my chambers received a yet further email at 2.12 pm from Mr Gullquist. Its form and its contents are unsatisfactory, and contain various inaccuracies and tendentious matters that I do not need to address. His statements border on obfuscation. None of what is said justifies any delay in dealing now with the second respondent’s application.
Moreover, there was a yet further email sent to my chambers by Mr Gullquist at 2.33 pm referring to a view expressed by a nutritionist, none of which in form or substance justified postponing the hearing. By emails from my chambers at 2.38 pm and 3.17 pm to the parties, I indicated that the matter would be proceeding at 4.15 pm.
Moreover, as in my view the application is hopeless, any further adjournment would be futile and would cause unnecessary delay and expense.
I would also note two other matters.
First, it is rather curious that the second respondent on 3 May 2021 filed her application for review, and yet when on 6 May 2021 my chambers notified her that her application would be dealt with at 4.15 pm on 7 May 2021, she became indisposed or unwilling to prosecute her application, and served up unsatisfactory medical evidence seeking delays of at least a month. I will not comment further.
Second, the second respondent’s application was filed very close to the end of the 21 day period allowed after the registrar’s order on 12 April 2021. There was no excuse for waiting so long.
In my view, in summary, the second respondent’s application is hopeless. Further, no adjournment is justified. Moreover, any adjournment would be futile.
Her application will be dismissed with costs.
[Discussion then ensued on fixing costs. The applicant’s solicitor provided a table of costs and disbursements.]
I will order that the second respondent pay the costs of her application to be fixed in the sum of $4,353; these are party/party costs, not indemnity costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate:
Dated: 11 May 2021
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