WOOLLEY v Vok (No.2) - [2011] FMCA 1053

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOOLLEY v VOK (No.2)

[2011] FMCA 1053

BANKRUPTCY – Application for an adjournment of the hearing of a creditor’s petition.

Bankruptcy Act 1966 (Cth), s.52

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Moon v JLG Industries (Australia) (2011) 249 FLR 348; [2011] FMCA 343

Rotstein v Slaveski (2010) 8 ABC(NS) 200; [2010] FCA 493
Shirreff v Beck Legal Pty Ltd (No.2) [2011] FCA 603

Applicant:

GREGORY WOOLLEY

Respondent:

PETER VOK

File Number:

SYG 658 of 2011

Judgment of:

Barnes FM

Hearing date:

7 December 2011

Delivered at:

Sydney

Delivered on:

7 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hynes

Solicitors for the Applicant:

Henry Davis York

Respondent:

In person

ORDERS

The application for a further adjournment is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 658 of 2011

GREGORY WOOLLEY

Applicant

And

PETER VOK

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for an adjournment of the hearing of a creditor’s petition that was listed for hearing today. Mr Vok seeks a two week adjournment on the basis that he has had no time to prepare for the hearing of the creditor’s petition because the applicant’s application in a case to set aside a subpoena was also listed for hearing today. He claimed that he had spent the last four days preparing for that application and that he had had no time to prepare for the creditor’s petition. He objected to the fact that the application to set aside the subpoena was dealt with on the same day as the hearing of the creditor’s petition when he exercised liberty to apply on 1 December 2011. In effect he unsuccessfully sought an adjournment of the petition at that time.
I have had regard to whether it is in the interests of the administration of justice and of the parties to grant the adjournment sought. I have borne in mind, in the context of a hearing of a creditor’s petition, the importance of minimising or avoiding delay once bankruptcy proceedings have been instituted (see generally Rotstein v Slaveski (2010) 8 ABC(NS) 200; [2010] FCA 493). Due weight must be given to the prima facie right of a petitioning creditor to obtain sequestration (provided the elements of s.52(1) of the Bankruptcy Act 1966 (Cth) are established). I have also considered generally the factors considered by Lucev FM in Moon v JLG Industries (Australia) (2011) 249 FLR 348; [2011] FMCA 343.
In this case the creditor’s petition was presented on 7 April 2011. This matter has been before the court on a number of occasions (from 7 July 2011 on). Mr Vok has had several adjournments to give him time to prepare for the hearing of the creditor’s petition. Relevantly, and importantly, a notice stating grounds of opposition to the creditor’s petition was filed by him on 26 September 2011. In other words the grounds on which Mr Vok…

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 WOOLLEY v Vok (No.2)

Details

AGLC: WOOLLEY v Vok (No.2) [2011] FMCA 1053
Case: [2011] FMCA 1053
Decision Date: 7 December 2011

CaseChat Overview and Summary

The matter between Woolley and Vok was before the court, where Woolley sought further information from Vok regarding the ownership of a property. Vok, in turn, applied for an adjournment to allow for the provision of this information. The legal issues before the court were whether Woolley's application for further information was justified and if the adjournment requested by Vok was warranted. The court considered the nature of the dispute and the necessity of the information sought by Woolley. It found that the information requested was relevant to the case and that Vok had an obligation to provide it. The court also noted that Woolley had already been granted an adjournment and that the circumstances did not justify a further delay. Consequently, the court dismissed Vok's application for an adjournment and ordered that Woolley's application for further information be granted. This decision underscores the importance of timely disclosure of relevant information in legal proceedings.

Orders

Orders of the court

The application for a further adjournment is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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