Federal Court of Australia

Toyota Finance Australia Pty Ltd v Hanna [2026] FCA 1555

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interim application dated 11 June 2026 be dismissed.

2.    The respondent is to pay the applicant’s costs of the interim application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    On 26 May 2026, Registrar Young made orders sequestering the respondent’s estate under the Bankruptcy Act 1966 (Cth). The date of the act of bankruptcy was deemed as 17 December 2025, 21 days after the service of a bankruptcy notice on the respondent.

2    On 11 June 2026, the respondent filed an interim application seeking orders (among other relief) dismissing the creditor’s petition and setting aside the sequestration order made by Registrar Young.

3    This matter was allocated to my docket on 17 June 2026. On 16 July 2026, I made orders setting out a timetable for the filing of evidence and submissions. Amongst other things, the respondent was required to file submissions and evidence in support of her interim application by 31 July 2026. Those timetabling orders were then varied on 11 August 2026. The revised orders required the respondent to file and serve any evidence on which she seeks to rely in support of her interim application by 4:00 pm on 14 August 2026.

4    As of the date of this judgment, no evidence has yet been filed.

5    On 24 September, I directed my Associate to send email correspondence to the parties, which relevantly said this:

… his Honour notes with concern that the respondent has not filed any evidence in support of her application, which was due to be filed on 14 August 2026. His Honour requests that the respondent provide an affidavit by 12:00 pm, 29 September 2026, explaining the cause of the delay as well as urgently attending to the filing of her evidence in this proceeding.

6    No such affidavit was ever provided to the Court. Nor, as I have said, did the respondent attend to the filing of her evidence in compliance with my orders and later direction.

7    On 13 October 2026, I directed my Associate to notify the parties that this matter had been listed for case management at 2:15 pm on 19 October 2026. In that email, my Associate requested that each party acknowledge receipt, which the applicant did via return email. The respondent did not respond to that email.

8    On 16 October 2026, I directed my Associate to call the respondent’s legal representative to confirm they were aware of the case management hearing. I am informed by my Associate that the call went to voicemail, which identified the line as belonging to ABH Legal (the solicitors for the respondent) and requested the caller leave a message, which my Associate did.

9    On 19 October 2026, I conducted a case management hearing in this matter. At the hearing, Mr Farrar appeared for the applicant, while there was no appearance by the respondent. I directed my Associate to call the matter for hearing three times in the lobby outside the Courtroom.

10    After that failed to unearth the respondent or her lawyers, Mr Farrar made an oral application for this proceeding to be dismissed under r 5.23(1) of the Rules. That rule relevantly provides that:

5.23 Orders on default

(1) If an applicant is in default, a respondent may apply to the Court for an order that:

(a)    a step in the proceeding be taken within a specified time; or

(b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

(i)    immediately; or

(ii)    on conditions specified in the order.

…

Note 1: The Court may make any order that the Court considers appropriate in the interests of justice—see rule 1.32.

Note 2: An order or judgment under this Division may be set aside or varied.

11    The matters constituting a “default” are set out in 5.22 as follows:

A party is in default if the party fails to:

(a)    do an act required to be done, or to do an act in the time required, by these Rules; or

(b)    comply with an order of the Court; or

(c)    attend a hearing in the proceeding; or

(d)    prosecute or defend the proceeding with due diligence.

12    In court, I made orders dismissing the proceedings under r 5.23 and indicated that I would publish my reasons shortly afterwards. These are those reasons.

13    The failure to file evidence in compliance with orders of the Court constituted an act of default for the purposes of r 5.22(b) of the Federal Court Rules 2011 (Cth). The failure to attend the case management hearing also arguably constituted an act of default within the meaning of r 5.22(c) (although see the possible question about that matter raised by Derrington J in Theo v Edwards [2025] FCA 605 at [9]). In any event, here, as in Theo, I am satisfied that the respondent’s failure to attend, or to seek to adjourn, the case management hearing together with her conduct in failing to obey the directions of the Court of 24 September 2026 involved a failure to prosecute her application with due diligence: r 5.22(d).

14    In all of the circumstances, as well as noting the lack of any explanation provided by the respondent for those matters, I am satisfied that it was appropriate to make the orders sought by the applicant.

15    The orders I have made are that the respondent’s interim application dated 11 June 2026 be dismissed and that the respondent is to pay the applicant’s costs of the application.

16    As a postscript, the unfortunate conduct of the respondent’s legal representatives, ABH Legal, should be noted. Lawyers owe an overarching duty to the Court. The respondent’s lawyers’ failures to adequately communicate with the Court, explain delays and appear at hearings (whether or not that was caused be an absence of instructions) is highly regrettable.

Associate:

Dated:    20 October 2026