Quaresmini v Crouch & Lyndon (A Firm) [2011] FMCA 71 (10 February 2011)

Federal Magistrates Court of Australia

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Quaresmini v Crouch & Lyndon (A Firm) [2011] FMCA 71 (10 February 2011)

Last Updated: 11 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

QUARESMINI v CROUCH & LYNDON (A FIRM)

[2011] FMCA 71

BANKRUPTCY – Application to Review sequestration order made by Registrar – costs.

Applicant:

LAURENCE JOHN QUARESMINI

Respondent:

CROUCH & LYNDON (A FIRM)

File Number:

BRG 186 of 2010

Judgment of:

Jarrett FM

Hearing date:

4 November, 2010

Date of Last Submission:

4 November, 2010

Delivered at:

Brisbane

Delivered on:

10 February, 2011

REPRESENTATION

Counsel for the Applicant:

Mr Black

Solicitors for the Applicant:

P M Lee & Co

Counsel for the Respondent:

Mr Meredith

Solicitors for the Respondent:

Crouch & Lyndon Lawyers

THE COURT ORDERS THAT:

(1) The applicant Laurence John Quaresmini pay the respondent’s costs of and incidental to:

• (a) The application to extend time within which to bring an application to review the sequestration order made on 25 March 2010 by Registrar Belcher;
• (b) The application to review the sequestration order made on 25 March 2010 by Registrar Belcher; and
• (c) The creditor’s petition dismissed by consent on 4 November, 2010

to be agreed between the parties and failing agreement within 28 days hereof, to be taxed in accordance with the scale of costs set out in Schedule 1 to the Federal Magistrates Courts Rules 2001.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE

BRG 186 of 2010

LAURENCE JOHN QUARESMINI

Applicant

And

CROUCH & LYNDON (A FIRM)

Respondent

REASONS FOR JUDGMENT

1. On 3 June, 2010 I made orders whereby I extended time within which Mr Quaresmini could bring an application to review the making of a sequestration order made on 25 March 2010 by Registrar Belcher. I set aside the sequestration order and I adjourned the hearing of the creditor’s petition to a later date. I reserved the parties’ costs of the creditors’ petition, the application to review and the application to extend time until the hearing of the creditor’s petition.
2. When the creditor’s petition came before me for hearing on 4 November, 2010 the parties agreed that the creditor’s petition should be dismissed by consent. Mr Quaresmini argues that the petitioning creditor should pay his costs of his two applications and the creditor’s petition. The petitioning creditor argues that it should have its costs of all three applications.
3. In my view the petitioning creditor should have its costs of the two applications filed by Mr Quaresmini and of the creditor’s petition.
4. The facts behind the petition and Mr Quaresmini’s applications are set out in my reasons for judgment delivered on 16 August, 2010.
5. The conduct of Mr Quaresmini throughout these proceedings and the earlier proceedings in the Queensland Magistrates Court which led to the making of a judgment by default and the subsequent issue of a bankruptcy notice can only be characterised as dilatory.
6. Mr Quaresmini alleged that he did not know about the Magistrates Court proceedings, but I expressed some scepticism about that in my earlier judgment.
7. Mr Quaresmini failed to respond to the Bankruptcy Notice when it was properly served upon him. He failed to respond to the creditor’s petition when it was properly served upon him. He failed to appear on the hearing of the creditor’s petition. Subsequently he filed his application to review the making of the sequestration order out of time.
8. There is no adequate explanation for Mr Quaresmini’s failure to respond to the bankruptcy notice or the creditor’s petition. There is no adequate explanation of the delay in bringing the application for review. There is affidavit material relied upon by Mr Quaresmini in support of his application for an extension of time to the effect that he was instructing solicitors and trying to get material together from the moment he found out about the bankruptcy notice. Even if that evidence explained his failure to respond to the bankruptcy notice, which in my view it does not, it does nothing to explain why:
   1. he did nothing to resist the judgment by default;
   2. he did nothing to resist the creditor’s petition, when it was served on him; and
   100. he did nothing in a timely way when he became aware of the sequestration order having been made.
9. The petitioning creditor has at all times throughout these proceedings (and those in the Magistrates Court) acted properly and as it was entitled to do. In my view no criticism can be laid at the feet of the petitioning creditor. These proceedings have come about entirely because of the actions (or perhaps more to the point the inaction) of Mr Quaresmini.
10. Mr Quaresmini argues that as he has been successful in having the sequestration order set aside, costs should follow the event. But in my view, having regard to the matters to which I have already referred, any presumption in favour of such an approach has been rebutted.
11. I make the orders set out at the commencement of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Date: 10 February, 2011