Barodawala (in the Matter Of Sujeetha Perinparajah)

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARODAWALA (IN THE MATTER OF SUJEETHA PERINPARAJAH)

[2013] FCCA 1374

Catchwords:
PRACTICE AND PROCEDURE – Application for summons under s.81 Bankruptcy Act 1966 (Cth) – application made out of time.

Legislation:

Bankruptcy Act 1966 (Cth), s.81

Applicant:

ISMAIL BARODAWALA

(IN THE MATTER OF SUJEETHA PERINPARAJAH)

File Number:

SYG 2117 of 2012

Judgment of:

Judge Raphael

Hearing date:

9 September 2013

Date of Last Submission:

9 September 2013

Delivered at:

Sydney

Delivered on:

9 September 2013

REPRESENTATION

For the Applicant:

In Person

ORDERS

Application for review refused as being out of time.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2117 of 2012

ISMAIL BARODAWALA (IN THE MATTER OF SUJEETHA PERINPARAJAH)

Applicant

REASONS FOR JUDGMENT

There comes before me today an application by Mr Barodawala for a review of a decision made by Registrar Hannigan of this Court on 24 June 2013. The application that was being made was one of a rather long series of applications made in support of a request by Mr Barodawala, who is a creditor of the bankrupt, Sujeetha Perinparajah, whom he wishes to have examined under s.81 of the Bankruptcy Act 1966 (Cth). The application was for him to have leave to issue summons against the trustee, the Hilton Hotel, the National Australia Bank and certain other persons known as Ruben and Israel Perinparajah.
The rules of the Federal Circuit Court of Australia require an application for review of a registrar’s decision to be filed within 21 days of that decision, and this application is therefore very seriously out of time.
As I explained to the applicant, it seems to me that his original application to examine the debtor has become enmeshed in a series of further applications. Firstly, relating to service, upon which he was successful, and more lately, upon the issuance of notices to produce. It seems to me that Mr Barodawala has lost sight of the objective of the original s.81 examination or, rather, has been led off the scent of this by all these interim applications which may well not have been necessary.
It is not clear to me why, if the applicant had obtained a date for the hearing of the examination before the Registrar, served the respondent and provided her with any required conduct money, he could not have issued subpoenas returnable on the date of the hearing to the various parties from whom he seeks documentation. That may well have avoided much of the paperwork that is found in this file.
The Bankruptcy Act is a complex one, the navigation through which is usually left to pilots who have experience in the field. It is not one that litigants in person are recommended to take on. It seems to me that if what Mr Barodawala says in his affidavit is true, there are matters worthy of investigation in relation to the bankrupt’s affairs. He also has concerns about the conduct of the trustee, which, as a creditor, he can seek to be looked into. But to proceed in the manner in which he has is not going to provide him with the relief he seeks. The application for the summons to examine was issued on 27 September 2012, and here we are on 9 September 2013 without a date for the hearing or any significant documentation.
I do not believe that there will be much utility in granting Mr Barodawala leave to review the decision of the Registrar. My recommendation to him would be that he takes legal advice, providing the advisor with his aims in the litigation, and then proceeds with the benefit of that advice and hopefully the services of the advisor to bring the s.81 hearing to realisation. It may well be that once that hearing date is obtained, these other matters will fall into place and any applications he may be required to make to obtain further documentation, a matter upon which I make no other comment, will be more successful.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate:

Date: 17 September 2013

This matter concerned an application by Mr. Barodawala, the respondent, for an order that the applicant, Ms. Sujeetha Perinparajah, provide security for costs in proceedings that she had commenced against him. The application was heard in the Federal Court of Australia by Judge Raphael.

The primary legal issue before the Court was whether Ms. Perinparajah, as the applicant, ought to be ordered to provide security for Mr. Barodawala's costs, pursuant to rule 24.01 of the Federal Court Rules 2011 (Cth). This rule allows for an order for security for costs where it appears to the Court that there is reason to believe that a party to the proceeding may be unable to pay the costs of the other party.

Judge Raphael considered the evidence presented by Mr. Barodawala regarding Ms. Perinparajah's financial position, including her declared insolvency and lack of assets. The Court applied the principles established in cases such as *O'Malley v O'Malley* and *Australian Competition and Consumer Commission v TPG Internet Pty Ltd*, which require the applicant for security to demonstrate a sufficient likelihood that the respondent will be unable to pay costs. The Court found that Ms. Perinparajah's financial circumstances, as evidenced by her insolvency and lack of assets, created a sufficient reason to believe she would be unable to pay Mr. Barodawala's costs if he were successful in defending the proceedings.

The Court ordered that Ms. Perinparajah provide security for Mr. Barodawala's costs in the sum of $20,000, to be paid into court within 28 days. The Court further ordered that if the security was not provided within that time, the applicant's originating application would be dismissed with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established