Agresta v Taylor (No 2)

Case [2014] FCA 1030

FEDERAL COURT OF AUSTRALIA

Agresta v Taylor (No 2) [2014] FCA 1030

Citation: Agresta v Taylor (No 2) [2014] FCA 1030
Appeal from: Application for Leave to Appeal: Agresta v Taylor [2014] FCA 262
Parties: FERDINANDO AGRESTA v BARRY TAYLOR
File number: NSD 417 of 2014
Judge: GLEESON J
Date of judgment: 23 September 2014
Catchwords: BANKRUPTCY – application for an extension of time to file a notice to appeal – where extension of time is not opposed – whether appeal has no reasonable prospects of success – application refused
Legislation: Bankruptcy Act 1966 (Cth)ss 58, 116, 134, 178
Conveyancing Act 1919 (NSW) s 12
Federal Court Rules 2011 (Cth) r 36.03, 36.05,
Cases cited: ACCC v Real Estate Institute of Western Australia (1999) 161 ALR 79
Frost v Sheahan (Trustee) [2009] FCAFC 20
House v The King (1936) 55 CLR 499
Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618
Meriton Apartments Pty Ltd v Industrial Court of New South Wales (2008) 171 FCR 380
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Vu v Minister for Immigration and Citizenship [2008] FCAFC 59
Date of hearing: 3 July 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 58
Counsel for the Applicant: The applicant appeared in person
Counsel for the Respondent: The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 417 of 2014
BETWEEN:

FERDINANDO AGRESTA
Applicant
AND:

BARRY TAYLOR
Respondent

JUDGE:

GLEESON J

DATE OF ORDER:

23 SEPTEMBER 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file a notice of appeal be refused.

2.The applicant pay the respondent’s costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 417 of 2014
BETWEEN:

FERDINANDO AGRESTA
Applicant
AND:

BARRY TAYLOR
Respondent

JUDGE:

GLEESON J

DATE:

23 SEPTEMBER 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. On 26 March 2014 a single judge of this Court (“the primary judge”) refused an application by the present applicant to set aside decisions of the respondent, who was then his trustee in bankruptcy: Agresta v Taylor [2014] FCA 262. The Court’s jurisdiction arose under s 178 of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), which provides that:

    If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable

  2. The decisions primarily concerned the respondent’s actions in procuring the dismissal by consent of District Court proceeding 2013/177756, commenced by the applicant while bankrupt (“District Court proceeding”). The applicant wishes to appeal from the judgment of the primary judge on ten grounds set out in a draft notice of appeal.

  3. By r 36.03 of the Federal…

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AGLC
Agresta v Taylor (No 2) [2014] FCA 1030
Case
[2014] FCA 1030
Decision Date

CaseChat Overview and Summary

The case of Agresta v Taylor (No 2) involved an undischarged bankrupt, the applicant, who sought an extension of time to file a notice of appeal against the primary judge's decision. The respondent, who was the trustee of the applicant's bankrupt estate until replaced by the Official Trustee in March 2014, opposed the application. The primary judge had already dismissed the applicant's appeal from the District Court's decision to set aside the primary judge's order dismissing the applicant's application to stay the proceedings in the District Court.

The court was required to decide whether the appeal had any reasonable prospects of success. The primary judge had exercised a discretionary power in dismissing the applicant's appeal, and the court was required to consider whether the primary judge had made an error in exercising that discretion. The court had to consider whether the appeal had any reasonable prospects of success, and whether the appeal had any real chance of success.

The court found that the primary judge's decision was discretionary, and that the principles in House v The King applied to the appeal. The court found that the primary judge had not made any error in exercising the discretion, and that the appeal had no reasonable prospects of success. The court held that the appeal was not a genuine attempt to appeal the primary judge's decision, but rather an attempt to delay the proceedings. The court refused the application for an extension of time to file a notice of appeal, and ordered the applicant to pay the respondent's costs.

The court found that the primary judge had exercised his discretion properly, and that the appeal had no reasonable prospects of success. The court found that the appeal was not a genuine attempt to appeal the primary judge's decision, but rather an attempt to delay the proceedings. The court held that the appeal had no reasonable prospects of success, and that the primary judge's decision should be upheld. The court refused the application for an extension of time to file a notice of appeal, and ordered the applicant to pay the respondent's costs.

Orders

Orders of the court

1. The application for an extension of time in which to file a notice of appeal be refused.

2. The applicant pay the respondent’s costs.

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

Background

Background to the litigation

The primary judge’s decision was discretionary and the principles in House v The King (1936) 55 CLR 499 at 504–505 apply to the appeal: Frost v Sheahan (Trustee) [2009] FCAFC 20 at [2]. That is:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Facts The applicant is an undischarged bankrupt, following a sequestration order made against him in June 2010. The respondent was the trustee of the applicant’s bankrupt estate from the making of the sequestration order until March 2014. In March 2014, the Official Trustee replaced the respondent as trustee.Circumstances leading to dismissal of District Court proceedings The applicant does not dispute the primary judge’s account of the relevant factual background. Relevantly, during 2009, a company represented by the applicant and called Phoenix Commercial Enterprises Pty Ltd (“Phoenix”) entered into an agreement with the owners of a property in Mosman, David Kidd and Odele Smith (“owners”), in connection with the carrying out of building work. The owners subsequently entered into a building contract with another company associated with the applicant, Escon Pty Ltd (“Escon”). The arrangements between Escon as builder and the owners as clients were made after the applicant had been declared bankrupt. Disputes between the applicant, Phoenix, Escon and the owners led to proceedings in the Consumer, Trader and Tenancy Tribunal (“CTTT”). The CTTT proceedings were between Escon, represented by the applicant, and the owners. On 19 March 2013, the CTTT decided that Escon could not succeed in its claims against the owners. On 2 June 2013, the applicant entered into a deed with Escon (“first Escon deed”). The deed provided relevantly:1.AGREEMENTS1.1[Escon] and Mr Agresta agree that on execution of this Deed Mr Agresta will pay to [Escon] the amount of ten dollars ($10) which [Escon] and Mr Agresta on signing this Deed acknowledge that Mr Agresta paid to [Escon]. 1.2[Escon] and Mr Agresta agree that [Escon] is not or to be held liable for any action commenced or pursued by Mr Agresta and any liability or debt incurred pursuant to any action taken by Mr Agresta is a a debt solely due and payable by Mr Agresta and no debt is due or payable by [Escon].2.ASSIGNMENT2.1In consideration of the amount set out in sub-paragraph 1.1 and the matter in sub-paragraph 1.2, [Escon] assigns to Ferdinando Agresta absolutely:(a)all of [Escon’s] rights, title, interest, capacity and/or chose in action regarding the Applications and the contract dated 17 November 2010 a copy of which is attached to this Deed and the Tax Invoice dated 2 August 2012 that remains unpaid by [the owners] a copy of which is attached to this Deed; and (b)all rights to any costs, interest amount and damages payable by anyone pursuant to any action taken by Mr Agresta regarding the matter set out in sub-paragraph 2.1(a).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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