WHITE J:
1 I am dealing with an oral application by the respondent for the adjournment of the hearing of the applicant's creditor's petition seeking a sequestration order against the respondent under s 43 of the Bankruptcy Act 1966 (Cth).
2 The creditor's petition was filed in the Court on 2 July 2018 and was initially listed for hearing before a Registrar on 7 August 2018, but was adjourned to 25 September 2018. On that date, the Registrar made an order, under s 35A(7) of the Federal Court of Australia Act 1976 (Cth), referring the petition for hearing and determination by a Judge.
3 The Registrar's order did not indicate the date and time on which the Judge would hear the application, but said, instead, that it would be heard "at a date and time to be advised". At that time, the respondent was represented by a Queensland firm of solicitors, Case Legal, and in particular, by Mr Raj, within that firm. Mr Raj and Case Legal continued to represent the respondent in the proceedings until 6 November 2018, when Mr Raj filed a Notice of Ceasing to Act.
4 On 9 October 2018, that is, at a time when Case Legal were acting for the respondent, my Associate forwarded an email to the respective solicitors, informing them of today's hearing.
5 The respondent seeks the adjournment of today's hearing on the following bases. First, he had not been aware of the hearing until yesterday when he received an email from the applicant's solicitors. Secondly, that he has had insufficient time to prepare for the hearing. Thirdly, because he suffers from a medical condition which impedes his ability to prepare and represent himself. Fourthly, because he wishes to obtain a report from an accountant to support his claim that he is solvent. The applicant opposes the grant of the adjournment.
6 I am not satisfied that it is appropriate to grant the adjournment sought by the respondent. First, the Court did give proper notice to the parties by the email from my Associate on 9 October 2018 of today's hearing. There is nothing to suggest that that email was not received by Case Legal. It would be a matter of surprise had Case Legal not informed the respondent on that receipt of today's hearing, and it would also be a matter of surprise had Case Legal not confirmed the hearing with the respondent when it ceased to act. If it be the case that there has not been notice provided by Case Legal, then that really is a matter which lies primarily between Case Legal and the respondent, the Court having given proper notice of today's hearing.
7 Secondly, and perhaps more fundamentally, it is appropriate in relation to the respondent's request for time, to take into account the time he has already had to provide material in defence of the petition. In particular, it is appropriate to take account of the orders made by the Registrar on 25 September 2018. Order 1 of those orders required the respondent to file and serve by 29 October 2018 any further affidavits upon which he wished to rely in support of the grounds set out in his notice of opposition filed on 19 September 2018.
8 In effect, the respondent was given five weeks in which to file any further affidavits. In addition, the Registrar anticipated the prospect that the respondent may seek more time, and made a specific direction as to the way in which that should be raised. Order 2 provided that, should the respondent seek a variation of the orders because of his medical condition, he was to make an application supported by an affidavit from his treating specialist, which addressed the nature of the condition or illness from which he suffers, and how the condition or illness impacts upon his ability to deal with the proceedings.
9 The respondent has not complied with either of the orders. He did, on 26 October 2018, send an email to the Court informing the Court that he could not comply with the timelines in the Registrar's order. He explained in the email that he had not been able to obtain a report from the treating specialist by reason of the time it was taking to obtain an appointment and set out some details of the medical condition, said to be a malignant thyroid cancer, from which he suffers. The respondent set out some details of stress and pressure to which he is subject, and said that he has provided instructions for the preparation of a solvency report but expected that this would be at least two weeks away from completion.
10 The respondent did not provide a copy of that email to the applicant's solicitors. My Associate responded to that email on 29 October 2018. In addition to drawing the respondent's attention to the Court's Guide to Communications with Chambers and Registry Staff, my Associate said:
Unless you have the consent of the respondent, you will need to apply by Interlocutory Application with a supporting affidavit for a variation of the timetable. Any application of this kind should be made as soon as practicable.
11 The respondent's response to that email on 2 November 2018 has a somewhat arch tone, but it is apparent that he had received the email, and can be taken to have been aware, accordingly, that, unless he obtained the consent of the applicant, an interlocutory application and supporting affidavit was required. There is no indication that the respondent sought the applicant's consent. Despite that, the respondent did not file any interlocutory application or any supporting affidavit. He did cause to be sent to the Court, on 3 December 2018, a copy of an affidavit from a Mr Jan Peter Sloane, an accountant made on 30 November 2018.
12 In that affidavit Mr Sloane deposes to the respondent having requested him to prepare an "Insolvency Report", that he had informed the respondent that he would need "substantive materials" in order to prepare such a report, that it has taken the respondent some time to provide the materials which he needs for that purpose, and that, having regard to his other work and holiday commitments, he estimates that that report will be completed by 21 January 2019.
13 In a document not yet filed but sent to my Associate late yesterday afternoon, which is in the form of an affidavit, the respondent says that he has not been able to comply with the time constraints imposed by the Court but will use his best endeavours to do so. He refers to some aspects of his medical treatment and that he expects to have a medical report provided to him by his specialist. The applicant also deposes that he is expecting the preparation of the solvency report by Mr Sloane.
14 I consider this summary to be sufficient to indicate the basis on which the respondent seeks more time in which to provide material with which to defend the petition.
15 In my view, the respondent has had a considerable period of time in which to obtain a solvency report, if that was intended. Just over five months have now elapsed since the creditor's petition was served, and over two months have elapsed since the Registrar made the orders on 25 September 2018.
16 The respondent did not comply with the orders made by the Registrar and did not take the action which he was informed was appropriate if he wished to seek an extension of the time in which to do so.
17 Just as pertinently, the respondent has not provided material on the basis of which it might be possible to conclude that there is some reasonable prospect of him establishing solvency. He has not provided anything at all in the nature of primary materials, bearing upon that prospect.
18 Naturally, the Court is concerned if a litigant is unable, by reason of ill health to give timely attention to matters before the Court, but in the present case the respondent has had the creditor's petition since about 3 July, over five months ago. I say that because an affidavit from a process server indicates that a copy of the creditor's petition was placed in the letterbox of the premises at 120 Esplanade, Toorbul, in Queensland, on 3 July 2018. That that is the address of the respondent is confirmed by the fact that it is the address given by him in the affidavit made on 6 December 2018. It appears that there may be some dispute or uncertainty as to whether the leaving of the petition in the letter box was effective service. Even if it was not, I consider it likely that the petition came to the respondent's attention at about that time. Even if that not be so, the respondent has had the creditor's petition since early September, and accordingly, has now had over three months in which to obtain and provide a solvency report or, at the very least, to put before the Court material on the basis of which one might be able to ascertain whether he has a reasonable prospect of establishing solvency.
19 The respondent has not provided a basis on which the Court could conclude that, even if given further time, the respondent would be able to obtain material with which to resist the creditor's petition. The respondent has been able to put it no higher than that he is expecting Mr Sloane's report to be "positive". The Court requires much more detailed evidence than that in order to be satisfied that there may be some utility in the grant of the adjournment.
20 For those reasons I refuse the application for the adjournment.
21 The act of bankruptcy on which the applicant relies is the respondent's non-compliance with a bankruptcy notice, issued by the Official Receiver on 21 December 2017 under s 41 of the Bankruptcy Act. The bankruptcy notice was served on the respondent on 22 December 2017. It was based on a default judgment entered in the District Court of South Australia on 14 November 2017 for an amount of $549,949.14. Post-judgment interest meant that the total claimed debt in the bankruptcy notice was $553,632.51.
22 The respondent has told the Court today that he does not dispute that debt, pointing out that it arises from his provision of a guarantee to the applicant.
23 The affidavit material indicates that the formal matters for the making of a sequestration order have been established. Whatever personal sympathy one may have for the predicament in which the respondent finds himself in presently, I am satisfied that the applicant has established its entitlement to a sequestration order, and that the orders it seeks should be made.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White.