Cann v Commonwealth Bank of Australia (No.4)

[2011] FMCA 698

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CANN v COMMONWEALTH BANK OF AUSTRALIA (No.4) [2011] FMCA 698

BANKRUPTCY – Application for review of sequestration order made by Registrar.

PRACTICE AND PROCEDURE – Application for adjournment of directions hearing – adjourned oral application for dismissal of review application.

Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.7.04, 7.06

Applicant: GAVIN MICHAEL CANN

Respondent: COMMONWEALTH BANK OF AUSTRALIA

File Number: PEG 2 of 2011

Judgment of: Lucev FM

Hearing date: 5 September 2011

Date of Last Submission: 5 September 2011

Delivered at: Perth

Delivered on: 5 September 2011

REPRESENTATION

For the Applicant: In person

Counsel for the Respondent: Ms K McNally

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The applicant file and serve:

   (a)an amended application for review; and

   (b)any further affidavits,

   by 12 September 2011.

2. The applicant:

   (a)file and serve any amended application for review on the Trustee in Bankruptcy; and

   (b)give notice to all creditors as required by Rule 7.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth),

   by 19 September 2011.

3. The applicant file and serve an affidavit of compliance with Order 2 by 26 September 2011.

4. The respondent file and serve:

   (a)notice of grounds of opposition to any amended application for review; and

   (b)any further affidavits, other than affidavits required under Rules 4.05 and 4.06 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth),

   by 19 October 2011.

5. Under Rule 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), the Trustee in Bankruptcy file and serve a further report on the applicant’s affairs by 17 November 2011.

6. The respondent to:

   (a)serve a copy of these Orders on the Trustee in Bankruptcy by 12 September 2011; and

   (b)file and serve an affidavit of compliance with paragraph (a) of this Order by 19 September 2011.

7. (a)Any amended application for review; and

   (b)the respondent’s adjourned oral application for dismissal of the application for review,

   be listed for hearing at 10:15am on 1 December 2011, with each party to file and serve an outline of submissions by 24 November 2011.

8. No further application for adjournment of these proceedings on medical grounds be entertained unless the application is supported by an affidavit of a medical practitioner annexing a report as to the reasons for adjournment, and subject to that medical practitioner attending for cross-examination by the respondent.

9. Costs be reserved.

10. In the event that Orders 1, 2 and 3 are not complied with, the respondent have liberty to request an urgent hearing of its adjourned oral application for dismissal, with that application to be provisionally listed at 10:15am on 30 September 2011. The liberty to apply exercisable by the respondent contacting the Associate or Deputy Associate to Federal Magistrate Lucev by electronic means, to request the formal listing of the oral application for dismissal on the aforementioned date, provided a copy of the request be forwarded simultaneously to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 2 of 2011

GAVIN MICHAEL CANN

Applicant

And

COMMONWEALTH BANK OF AUSTRALIA

Respondent

REASONS FOR JUDGMENT

(Ex tempore reasons – edited from transcript)

1. In relation to the oral application for adjournment made today by Mr Cann, that application will be dismissed.  Mr Cann has no standing to bring an appeal from the District Court of Western Australia[1] without the consent of the Official Trustee in Bankruptcy.  Therefore, Mr Cann’s assertion that he intends to appeal on his own behalf is baseless and any such appeal either could not be accepted, or would be dismissed in any event.

   [1] “District Court”.

2. With respect to Mr Cann’s proposed application to the State Administrative Tribunal for an order granting approval for borrowings from his mother’s trust, again that is an application which in the Court’s view, if made, ought not affect these proceedings in bankruptcy.  These proceedings have now been on foot for close to nine months and have been the subject of a number of applications for adjournment by Mr Cann, which have previously been rejected.

3. There comes a time in all litigation where it is necessary for a court to undertake its fundamental task of resolving the relevant controversy.  In this case, the Court has previously made orders for the hearing and determination of this matter, which were effectively put to one side when it appeared that the parties had reached an agreement in principle, which agreement has now fallen by the wayside as a consequence of Mr Cann’s asserted intention to appeal the District Court judgment.

4. Given the previous in principle agreement has now fallen by the wayside, the Court considers it is now appropriate to move on and determine the outstanding application for review and the respondent’s adjourned oral application for dismissal of the review.  The Court observes that this application has been beset at almost every turn by applications for adjournment and in particular, applications for adjournment by Mr Cann. 

5. In the circumstances, the Court, in addition to the usual orders, will make an order that no further application for adjournment of these proceedings be entertained, unless the application for adjournment is sought on medical grounds and is supported by an affidavit of a medical practitioner, annexing a report as to the reasons for adjournment, and subject to that medical practitioner attending court for cross-examination by the respondent.

6. The Court will also make an order that in the event that Orders 1, 2 and 3 are not complied with, the respondent have liberty to request an urgent hearing of its adjourned oral application for dismissal, with that application to be provisionally listed at 10:15am on 30 September 2011.  The liberty to apply to be exercisable by the respondent contacting the Associate or Deputy Associate to Federal Magistrate Lucev by electronic means, to request the formal listing of the adjourned oral application for dismissal on the aforementioned date, provided that a copy of the request be forwarded simultaneously to the applicant.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date: 29 September 2011