Background
ACN 152 259 839 Pty Ltd (formerly Maxcon Developments Pty Ltd) entered liquidation under the management of Andrew Reginald Yeo. In November 2025, the liquidator obtained orders from the Federal Court for examination and production summonses directed at various individuals including Dimitrios Diakou and the Elzain brothers, seeking their testimony and documents concerning the company’s affairs. The production deadline was extended to 29 January 2026. On that date, the applicants filed an interlocutory application seeking to set aside the summonses and orders for production.
By consent orders made 19 February 2026, Justice Button scheduled the hearing for 7 April 2026 and imposed a timetable for evidence and submissions. The applicants’ senior counsel, Mr Daryl Williams KC, was unavailable during the period 20 April to 5 May 2026 due to his involvement in another class action matter. After preliminary discussions with the liquidator’s counsel, no agreement was reached on alternative dates. The applicants failed to comply with the timetabling orders, filing neither supplementary affidavits nor submissions by the dates specified.
On 2 April 2026, when the Court’s associate drew attention to the non-compliance, the applicants indicated they would seek an adjournment. The affidavit in support was not served until 8.36am on the morning of the 7 April hearing. At the hearing, the applicants’ counsel—briefed only to make the adjournment application—applied for an adjournment, which Button J refused. The counsel then withdrew, and with only the solicitor present on videolink, Button J proceeded to hear and dismiss the substantive application.
The Court’s Holding
Justice Beach dismissed the application for leave to appeal. While noting the potential bar under s 24(1AA)(b)(ii) of the Federal Court of Australia Act 1976 (Cth) against appeals from decisions not to adjourn, the court proceeded on the merits, assuming in favor of the applicants that the provision did not apply.
On the substantive grounds, Beach J held that neither limb of the test for leave to appeal was satisfied. First, Button J’s decision to refuse the adjournment was not “attended with sufficient doubt.” The applicants had known of the 7 April date since 19 February 2026 and had more than one month to secure alternative counsel. They failed to comply with the programming orders to file evidence and submissions. The adjournment application itself was made very late, without adequate explanation. The liquidator’s counsel had reorganized his personal arrangements to be available on 7 April. No good reason had been demonstrated to justify delaying the proceedings or disrupting court resources already allocated. The decision reflected an appropriate exercise of discretion in requiring litigants to comply with court orders and timetables.
Second, the decision to dismiss the substantive application was also not attended with sufficient doubt. The applicants had failed entirely to advance any substantive grounds before the court—they filed no evidence or submissions in support of setting aside the summonses. The liquidator, by contrast, complied fully with his obligations. Even assuming some error, there would be no substantial prejudice to the applicants since they had presented no substantive arguments for the court to consider.
Key Takeaways
- Liquidation proceedings are to be conducted efficiently and expeditiously; court resources must not be delayed without good reason.
- Litigants who have had ample time and opportunity to prepare cannot rely on the unavailability of preferred counsel or their own lack of preparation as grounds for adjournment when they have not explained why they failed to comply with orders.
- An application for leave to appeal must satisfy both prongs of the test: the decision must be attended with sufficient doubt, and substantial injustice must have resulted. Failure to file evidence or submissions, coupled with non-compliance with timetabling orders, may preclude demonstrating prejudice.
- Section 24(1AA)(b)(ii) of the Federal Court of Australia Act creates a statutory bar on appeals from decisions not to adjourn, though allegations of procedural fairness arising from an adjournment refusal occupy complex legal terrain under recent authority.
Why It Matters
This decision reinforces the court’s firm approach to managing liquidation proceedings, which are inherently time-sensitive given the winding-up objectives and the need to realize assets promptly. The judgment makes clear that procedural compliance and reasonable diligence are expected of all parties, and that personal inconvenience to counsel—even senior counsel—is not a basis for adjournment when adequate notice and opportunity have been provided to secure alternative representation. The court’s willingness to proceed and dismiss unargued applications serves the systemic interest in finality and the efficient use of judicial resources.
The case also illustrates the tension between statutory bars on adjournment appeals and the principle that procedural fairness cannot be entirely stripped away. While Beach J did not resolve the s 24(1AA)(b)(ii) question definitively, the reasoning suggests that straightforward adjournment decisions—even those with procedural fairness dimensions—lie outside the scope of appellable error when litigants have had reasonable opportunity to comply and have failed to do so.
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