Baycorp Collections PDL (Australia) Pty Ltd v Reaper
[2016] FCCA 2458
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD v REAPER | [2016] FCCA 2458 |
| Catchwords: BANKRUPTCY – Application to stay orders for the sale of the bankrupt’s property – applicant having made a similar application previously – so-called “fresh evidence” – so-called “deemed admissions” from notices to admit – no proper admissions – no basis for application. |
| Legislation: Bankruptcy Act 1966 (Cth), s.178 |
| Cases cited: Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106 |
| Applicant: | BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD |
| Respondent: | BRETT REAPER |
| File Number: | MLG 887 of 2012 |
| Judgment of: | Judge Wilson |
| Hearing date: | 15 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Ms D. McCredden of White Cleland Pty Ltd |
| Respondent in person | ||
| Counsel for the Trustee of the Bankrupt Estate of Brett Reaper: | Mr B. Devanny | |
ORDERS
Paragraphs 1 and 3 of the application in a case filed by the respondent on 13 September 2016 is dismissed.
Paragraph 2 of the application in a case filed by the respondent on
13 September 2016 is adjourned to this Court before her Honour
Judge Hartnett on 20 October 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 887 of 2012
| BAYCORP COLLECTIONS PDL (AUSTRALIA) PTY LTD |
Applicant
And
| BRETT REAPER |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue in this case is whether I should grant Brett Reaper a stay of the orders made by his Honour Judge Burchardt on 18 September 2015 as amended on 9 October 2015. Since those dates, in separate appeals or applications made by Mr Reaper to Pagone J, Davies J, Tracey J, Middleton J and Mortimer J, Mr Reaper failed in each. Justice Davies was particularly critical of assertions of fraud made by Mr Reaper against the trustee.[1]
[1] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2016] FCA 579.
Synopsis
For the reasons set out below, I dismiss this application[2] made by
Mr Reaper.
[2] Interim Application filed by Brett Reaper on 13 September 2016.
Relevant background material
The factual setting of this application - yet another in the seemingly never-ending clash between Mr Reaper and Baycorp Collections PDL (Australia) Pty Ltd (“Baycorp”) - has been set out in the judgment of Pagone J[3] and in the judgment of Davies J.[4] I shall not burden the jurisprudence that has been spawned by this litigation with a detailed narration of how this application came to me. Suffice it to say that on 20 October 2016, her Honour Judge Hartnett will hear Mr Reaper’s application to set aside the creditor’s petition that led to the making of the sequestration order on 7 March 2013 by Registrar Luxton pursuant to which Mr Reaper was made a bankrupt.
[3] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13.
[4] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2016] FCA 579.
Mr Reaper filed an application in a case on 13 September 2016 in which he sought –
a)
an order staying paragraph 6 of the orders made by his
Honour Judge Burchardt on 18 September 2015 as amended on
9 October 2015;
b)an order requiring the trustee to adjudicate, investigate and or verify the petitioning creditor’s proof of debt; and
c)
alternatively, an injunction restraining the trustee from acting on the orders of his Honour Judge Burchardt made on
18 September 2015 as amended on 9 October 2015.[5]
[5] Interim Application filed by Brett Reaper on 13 September 2016 at p.2.
Baycorp filed an application in a case on 14 September 2016, returnable on 20 October 2016, seeking orders dismissing Mr Reaper’s application and also seeking orders prohibiting Mr Reaper from issuing any other application in this proceeding or in any other proceeding without first obtaining leave of the Court.
In support of his application for orders staying the orders made by his Honour Judge Burchardt, Mr Reaper affirmed an affidavit on
3 September 2016. Relevantly paraphrased, the following were the more salient matters that arose from that affidavit –
a)if the orders made by his Honour Judge Burchardt are executed, Mr Reaper will lose his home; and
b)Mr Reaper had fresh evidence, obtained subsequent to the orders of his Honour Judge Burchardt, that demonstrated that the bankruptcy should be annulled.[6]
[6] Affidavit of Brett Reaper affirmed 3 September 2016 at [6]-[7].
In that affidavit, Mr Reaper asserted that the trustee in this bankruptcy “is associating himself with a proof of debt he knows,
and is taken to have admitted, contains false or misleading documents”.[7] In that affidavit, Mr Reaper exhibited “Annexure 1” being a “without prejudice” letter dated 12 June 2016 that Mr Reaper wrote to his trustee in bankruptcy, two paragraphs of which relevantly provided as follows –As Baycorp is the only default creditor, I am adamant that your reluctance to previously investigate my claim is not due to a lack of capacity or evidence, but to preserve your remuneration and safeguard the appointment creditor with whom you share a conflict of interest.
In my view, there is no doubt that Baycorp has committed fraud not only against my person but against the Commonwealth.[8]
[7] Affidavit of Brett Reaper affirmed 3 September 2016 at [15].
[8] Affidavit of Brett Reaper affirmed 3 September 2016 at “Annexure 1”.
Consideration
In her judgment handed down on 26 May 2016, Davies J levelled a collection of trenchant criticisms towards Mr Reaper for his unsubstantiated assertions of fraud. Her Honour said the following –
Mr Reaper’s written submissions made other serious and wholly unsubstantiated assertions of fraud in relation to the material relied upon by the respondents in the annulment application, all of which was directed at seeking to challenge the debt claim on which he was bankrupted. The assertions lacked any evidential foundation, and were totally unmeritorious. They should not have been made and this judgment is a record of the Court’s disapproval of the unjustified attacks on the respondents.[9]
[9] [2016] FCA 579 at [21].
Those observations were made on 26 May 2016. Mr Reaper’s letter to the trustee was written almost three weeks after her Honour handed down judgment. In other words, Mr Reaper has persisted in his assertions of fraud, despite her Honour’s disapproval of that conduct.
At all events, it was plain enough that in his affidavit affirmed
3 September 2016 Mr Reaper was seeking to impugn the judgment debt on which his bankruptcy was based. He sought to challenge the assignment of debt between Westpac Banking Corporation (“Westpac”) and Baycorp.
As has been observed by other judges who have been involved in the bankrupt estate of the respondent, most notably Pagone J, the default judgment on which the bankruptcy was based was not set aside.
Mr Reaper’s application for a rehearing of the default judgment was dismissed on 15 May 2012. Mr Reaper did not contest and did not establish that the assignment of Westpac’s debt to Baycorp was ineffective. Instead, Mr Reaper contested that the debt was not due by him personally and instead was due from a landscaping company of which Mr Reaper had been a director.
[12] [1892] 2 QB 633.
Mr Reaper told me he wished to go behind the judgment debt so as to prove that it was irregular and therefore that the sequestration order made in pursuance of it ought to be annulled. In debate with Mr Reaper who appeared by telephone, he having asserted that he was too infirm to travel to Court, I brought to his attention the very recent observations of the Full Court of the Federal Court of Australia on the subject of going behind the judgment debt on which a creditor’s petition was based. In Compton v Ramsay Health Care Australia Pty Ltd[10](“Compton”) the Full Court of the Federal Court of Australia (Siopis, Katzmann and Moshinksy JJ) made observations about the circumstances in which it may be appropriate for a court to go behind a judgment. Their Honours’ review of the authorities, commencing with Ex parte Lennox; in Re-Lennox[11] and Lord Esher MR’s decision in
Re Fraser; Ex parte Central Bank of London[12]was scholarly, if I may say so with respect. Ultimately, as Barwick CJ observed in
Wren v Mahoney,[13] the judgment on which the bankruptcy is based is never conclusive. It falls in this case to Mr Reaper to prove that reason is shown for questioning whether behind the judgment there is in truth and in reality a debt due to the petitioning creditor. Her Honour
Judge Hartnett will undoubtedly consider that issue along with (to use the words of Besanko J in Goyan v Motyka[14]) “the myriad of circumstances” that have arisen.
[13] (1972) 126 CLR 212.
[14] [2009] FCA 776 at [53].
[10] [2016] FCAFC 106.
[11] (1885) 16 QBD 315.
Mr Reaper told me he did not wish to address me on any aspect of the Full Court’s decision in Compton. Having examined that decision,
the solicitor for Baycorp submitted that going behind the judgment in this case was not a live issue.
In this application Mr Reaper sought a stay of his Honour
Judge Burchardt’s orders made 18 September 2015 as amended on
9 October 2015 on the basis that fresh evidence had come to light subsequent to his Honour’s orders. Specifically, the so-called fresh evidence was said to be made up of “deemed admissions”[15] derived from certain documents. It therefore became necessary to examine precisely the so-called admissions that Mr Reaper contended represented the “fresh evidence” in the case that was sufficient, so he said, to warrant staying the orders made by his Honour
Judge Burchardt.
[15] Transcript of Proceedings, 15 September 2016 at p.13.
The notices to admit
Mr Reaper filed three notices to admit facts, the first dated
22 July 2016 and the second and third dated 31 July 2016.
The notice to admit dated 22 July 2016 was addressed to Baycorp.
It was 14 paragraphs in length in relation to facts and two paragraphs in length in relation to the documents. Baycorp disputed paragraphs 1 to 14 (the factual issues) and admitted the authenticity of two documents mentioned in paragraphs 15 and 16 of the notice to admit.[16] Mr Reaper contended that the admission as to authenticity of those two documents was “fresh evidence”.
[16] Notice of Dispute filed 8 August 2016.
I disagree.
Mr Reaper raised a so-called “fresh evidence” contention before
Davies J. Her Honour dismissed the so-called “fresh evidence” contention observing that the application before her Honour “constitutes yet another attempt to re-litigate” matters already determined by the Federal Court of Australia.[17] Those observations apply with full force and effect to the facts of this application. Baycorp’s admission as to authenticity of a credit card certificate does not constitute fresh evidence. Both Pagone J and Davies J addressed at length aspects of the debt owed by Mr Reaper to Westpac. The documents described in paragraphs 15 and 16 of the
22 July 2016 notice to admit do not provide any foundation for the assertions that Mr Reaper has made. There is no substance in the contention that any alleged admission said to be founded by Baycorp’s admission of the authenticity of the two documents was
“fresh evidence”.
[17] [2016] FCA 579 at [7].
One of the notices to admit dated 31 July 2016 was addressed to the solicitor for Baycorp. The notice to admit was disputed in its entirety.[18] Nothing could be gained by Mr Reaper from the dispute about the notice to admit addressed to Baycorp’s solicitors.
[18] Notice of Dispute filed 15 August 2016.
In the notice to admit dated 31 July 2016, Baycorp disputed the facts recorded in paragraphs 1 to 8 and admitted the authenticity of the two documents referred to in the notice.[19]
[19] Ibid.
An admission as to the authenticity of certain documents in a notice to admit amounts to the party making the admission stating that the document is what it purports to be. Any such admission says nothing about the legal effect of the document. Nor does the admission say anything about the construction of the document. Those are matters to be proved in the ordinary course.
In the judgment of Pagone J[20] his Honour held that Mr Reaper had not established that the judgment debt was not due by him and that the sequestration order ought not to have been made. Mr Reaper argued before me that the so-called admissions in the three notices to admit referred to above represented fresh evidence of sufficient persuasion that I ought to stay the orders of his Honour Judge Burchardt. I am not willing to do that. Not only were the so-called admissions not
“fresh evidence” but they did not in any way address the observations that Pagone J made as referred to above.
[20] [2014] FCA 13 at [8].
In Coulton & Ors v Holcombe & Ors,[21] Deane J of the High Court referred to “the need, in the interests of both the public and particular litigants, that there be finality in litigation”.[22] In this litigation
Mr Reaper has engaged in an extraordinarily large number of appeals from orders or applications and he has otherwise vexed the trustee by a litany of unsuccessful applications in the Federal Court. In one,
before Davies J, Mr Reaper earned a very serious rebuke from her Honour. That has not deterred Mr Reaper.
[21] (1986) 162 CLR 1.
[22] (1986) 162 CLR 1 at [18].
In debate before me, Mr Reaper requested me to require the trustee to adjudicate upon Baycorp’s proof of debt. I asked Mr Reaper whether he sought to challenge such an order so that he could lock the trustee into an “act, omission or decision” within the meaning of s.178 of the Bankruptcy Act 1966 (Cth) (“the Act”) later challenging that
“act, omission or decision”. Mr Reaper said that was his purpose. It is readily apparent that Mr Reaper’s purpose in engaging in ongoing skirmishing with the trustee is to exhaust the trustee’s willingness to pursue the trustee’s rights against Mr Reaper as well as the trustee’s available funds to do so. It must be remembered that Mr Reaper is an undischarged bankrupt. The trustee is an officer of the court charged with performing the public duties conferred upon him under the Act.
In the exercise of my discretion to grant or refuse the relief Mr Reaper seeks, it is relevant for me to take into account Mr Reaper’s conduct in engaging in the procedural tactics and skirmishing in which he is currently engaging when bringing an array of unsuccessful applications and when he continues to make unjustified attacks on the respondents, notwithstanding Davies J’s express disapproval of that conduct.
Conclusion
I am not persuaded that relief should be granted to Mr Reaper by making the orders for the stay he seeks.
Net outcome
I dismiss paragraphs 1 and 3 of his application in a case. If Mr Reaper is successful before her Honour Judge Hartnett in his application on
20 October 2016 he can, if he chooses, renew his application for orders in terms of paragraph 2 of his application in a case. For the time being I adjourn the further hearing of the application made in paragraph 2 of Mr Reaper’s application in a case to her Honour Judge Hartnett on
20 October 2016.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 22 September 2016
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