Re Jorgenson ex parte H G & R Nominees Pty Ltd [1999] FCA 1023

FEDERAL COURT OF AUSTRALIA

Re Jorgenson; Ex parte HG & R Nominees Pty Ltd [1999] FCA 1023

RE DENIS ERROL JORGENSON and MARK JOHN WHITEHEAD; EX PARTE HG & R NOMINEES PTY LTD QG 7581 of 1997 DRUMMOND J 21 JULY 1999 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 7581 OF 1997

IN THE MATTER OF DENIS ERROL JORGENSON and MARK JOHN WHITEHEAD

RE: DENIS ERROL JORGENSON and MARK JOHN WHITEHEAD

Debtors

EX PARTE: HG & R NOMINEES PTY LTD (ACN 04 462 658)

Applicant Creditor

JUDGE: DRUMMOND J

DATE OF ORDER: 21 JULY 1999

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. A sequestration order be made against the estate of Mark John Whitehead.

2. The petitioning creditor's costs of and incidental to the petition be the creditor's costs in bankruptcy.

3. Whitehead Payne Solicitors pay the costs of the petitioning creditor thrown away by reason of the adjournment of the hearing of the petition on 17 June 1999 on an indemnity basis, that is, to the intent that Whitehead Payne shall pay all the petitioning creditor's so thrown away save only for such of its costs, if any, as may have been unreasonably incurred.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 7581 OF 1997

IN THE MATTER OF DENIS ERROL JORGENSON and MARK JOHN WHITEHEAD

RE: DENIS ERROL JORGENSON and MARK JOHN WHITEHEAD

Debtors

EX PARTE: HG & R NOMINEES PTY LTD (ACN 04 462 658)

Applicant Creditor

JUDGE: DRUMMOND J

DATE: 21 JULY 1999

PLACE: BRISBANE

REASONS FOR JUDGMENT

1 This is an adjourned creditor's petition. The matter came before me for hearing on 17 June 1999. On that day, the debtor, Mark John Whitehead, appeared and obtained leave to file and read an affidavit on the basis of which I granted him the adjournment for the reasons outlined on 17 June 1999. On that occasion, the Court made orders adjourning the further hearing of the petition to today and gave detailed directions designed to ensure that Mr Whitehead would file any material that he wished to rely upon and be in a position to present argument to the Court today. 2 Yesterday, Mr Whitehead filed an affidavit, which he did not bother to serve on the creditor, in which he says he is putting himself in the hands of the Court. He claims he is not able to appear today as he has been called away to look at an opportunity which has been offered to him and his immediate need is to try to provide a living for his family and he apologises for his absence. He presumably wishes the Court to undertake the burden of fossicking through the file and, if anything occurs to the Court that might be able to be raised for his benefit, Mr Whitehead seems to assume that the Court will follow that course. It is no part of the role of the Court to act as advocate for an absent party and I do not propose to undertake the exercise that Mr Whitehead, impliedly at least, invites the Court to undertake. 3 Having regard to the material read by the counsel for the petitioning creditor, I am satisfied of all the matters of which I am required to be satisfied by s 52 the Bankruptcy Act 1966 (Cth) and I will make a sequestration order against the estate of Mark John Whitehead. 4 The question before me now is whether I should order the firm of Whitehead Payne to pay the petitioning creditor's costs thrown away by the adjournment of the hearing of its contested petition on 17 June 1999. On that day, the debtor, Mr Whitehead, appeared in person and read an affidavit in which he applied for an adjournment of the hearing on the ground there were a number of important witnesses, according to him, whose attendance he had been unable to procure because he was only advised by his solicitors, Whitehead Payne, of the hearing date two days before. 5 The material that the debtor, Mr Whitehead, filed on that occasion included a facsimile from Whitehead Payne dated 15 June 1999 enclosing a copy of the letter from the Court of 7 April 1999 to Whitehead Payne advising them that 17 June 1999 had been fixed for the hearing. The circumstances in which I granted the adjournment are dealt with in brief in the reasons I gave on 17 June 1999 and, on that occasion, I also directed that Whitehead Payne be given an opportunity to show cause why they should not have to pay the costs of the petitioning creditor thrown away on that day because of the decision I then made to adjourn the hearing. 6 A number of things are clear. The first is that, on the material now before me, it seems that the debtor procured an adjournment in circumstances where he was really seeking to buy further time and it can be doubted strongly whether he ever had any bona fide intention to resist the winding-up order. The second thing that needs to be noted, as Mr Philip Whitehead of Whitehead Payne has repeatedly pointed out, is that the debtor, Mark Whitehead (who is no relation to the solicitor), has, throughout the time this petition has been before the Court, appeared himself on his own behalf on every occasion. That is, Whitehead Payne has never appeared for him at any Court hearing of the petition. 7 However, that, to my mind, does not provide of itself a reason for concluding that a costs order should not be made against Whitehead Payne in respect of the creditor's wasted costs of 17 June 1999. 8 Mr Muller, in the affidavit read on behalf of the petitioning creditor today, refers to an extensive sequence of communications with Mr Philip Whitehead of Whitehead Payne in connection with issues raised by the petition. He exhibits correspondence from Mr Philip Whitehead, including a letter written by Mr Philip Whitehead on 17 November 1998 which is headed "RE Mark John Whitehead - HG & R Nominees Pty Limited Creditor's Petition: 7581/1997" and it begins in this way: