FEDERAL COURT OF AUSTRALIA Liang v Dai [2020] FCA 243 File number(s): NSD 123 of 2020 Judge(s): YATES J Date of judgment: 25 February 2020 Catchwords: PRACTICE AND PROCEDURE – Whether hearing of creditor's petition should be adjourned – adjournment refused Date of hearing: 25 February 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr C Tam Solicitor for the Applicant: Holding Redlich Solicitor for the Respondent: Mr J Hidayat of Piper Alderman ORDERS NSD 123 of 2020 BETWEEN: DUAN LIANG Applicant AND: MENG DAI Respondent JUDGE: YATES J DATE OF ORDER: 25 FEBRUARY 2020 THE COURT ORDERS THAT: 1. The respondent's application for an adjournment of the hearing of the creditor's petition listed today, be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) YATES J: 1 The respondent seeks the adjournment of a creditor's petition listed for hearing today. The adjournment is sought on the basis that an offer of finance has been made to a company associated with the respondent (the letter of offer), under which it is contemplated that the judgment debt payable to the applicant will be paid at settlement. The letter of offer has not been executed by the borrower to signify its acceptance nor has the letter of offer been executed by any of the intended guarantors, one of whom is the respondent himself. 2 The respondent's solicitor has informed me that the respondent has instructed him that he does intend to execute the letter of offer, but there is no evidence before me of that fact. Moreover, there is no evidence before me that the intended borrower or the other intended guarantors will execute the letter of offer. 3 I also note that one of the conditions precedent for the loan is expressed as follows: Consent from all of the shareholders and/or the directors of the Borrower to this advance and the use of funds. 4 There is no evidence that this condition precedent or indeed all the other condition precedents for the loan will be satisfied, including, importantly, the completion of "satisfactory due diligence." "Satisfactory due diligence", in turn, requires (among other things) submission of a valuation of real property at 221 North Rocks Road, North Rocks, New South Wales, which is satisfactory to the lender. 5 The applicant opposes the adjournment. She has no confidence that the foreshadowed funds will be forthcoming. 6 I am not persuaded that sufficient grounds have been established for an adjournment. The evidence for an adjournment is scant and rests solely on the letter of offer that is in evidence. I have already discussed the circumstances attending that letter. I am persuaded that there is considerable uncertainty that funds will be forthcoming. All that has been held out is the prospect (and a mere prospect at that) that finance will be available to satisfy the respondent's indebtedness to the applicant. 7 I also note that the letter of offer, in its current form, has been provided very late in the piece. It is dated 24 February 2020, just one day before the listed hearing. I have been informed that the act of bankruptcy occurred on 15 December 2019. The petition was served on the respondent on 14 February 2020. The existence of the respondent's debt to the applicant, which is for a not inconsiderable sum, is undisputed. It is only now, at the point of the hearing of the petition, that the offer of finance (such as it is) materialises, and the adjournment is sought. 8 For these reasons, I am satisfied that the petition should proceed to hearing. The adjournment is refused. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 28 February 2020