Bell v Cribb
[2013] WASCA 159
•5 JULY 2013
BELL -v- CRIBB [2013] WASCA 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 159 | |
| THE COURT OF APPEAL (WA) | 05/07/2013 | ||
| Case No: | CACV:20/2013 | 21 JUNE 2013 | |
| Coram: | PULLIN JA MURPHY JA | 21/06/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CARL WILLIAM BELL NEIL RAYMOND CRIBB COSTANOZA PTY LTD (In Liquidation) |
Catchwords: | Bankruptcy Appeal incompetent Failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) |
Legislation: | Bankruptcy Act 1966 (Cth), s 58, s 60(2), s 134(1) Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(ii) |
Case References: | Bell v Cribb [2013] WASC 32 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Samootin v Shea [2010] NSWCA 371 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : BELL -v- CRIBB [2013] WASCA 159 CORAM : PULLIN JA
- MURPHY JA
- Appellant
AND
NEIL RAYMOND CRIBB
First Respondent
COSTANOZA PTY LTD (In Liquidation)
Second Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : BEECH J
Citation : BELL -v- CRIBB [2013] WASC 32
File No : CIV 1697 of 2012
(Page 2)
Catchwords:
Bankruptcy - Appeal incompetent - Failure to comply with the Supreme Court (Court of Appeal) Rules 2005 (WA)
Legislation:
Bankruptcy Act 1966 (Cth), s 58, s 60(2), s 134(1)
Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : Ms F F Xue
Second Respondent : Ms F F Xue
Solicitors:
Appellant : In person
First Respondent : Gadens Lawyers
Second Respondent : Gadens Lawyers
Case(s) referred to in judgment(s):
Bell v Cribb [2013] WASC 32
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
Samootin v Shea [2010] NSWCA 371
(Page 3)
1 REASONS OF THE COURT: On 21 June 2013, the court made orders dismissing the appeal with reasons to follow. These are the reasons.
2 This appeal came before the court as a result of a registrar's notice to attend, which stated that the purpose of the hearing was:
For the appellant to show cause why the appeal should not be dismissed on one or more of the following grounds:
• that it has not been properly commenced, the rights of the appellant having previously vested in the Official Trustee under the Bankruptcy Act;
…
• that the appellant has failed to comply with the Supreme Court (Court of Appeal) Rules 2005, and in particular has failed to file the appellant's case as required by rule 32.
3 The appeal was against the orders made by Beech J in CIV 1697 of 2012 on 8 February 2013; Bell v Cribb [2013] WASC 32. Beech J explained that, in the action, the plaintiffs, including the appellant, claimed to own a number of vehicles and other assets that they complained were wrongly taken by the liquidator of the second respondent. By counterclaim, the liquidator claimed to be entitled to transfer a number of those vehicles and other vehicles. The liquidator counterclaimed for orders setting aside transactions by which the plaintiffs, including the appellant, became owners of various vehicles claiming that they involved uncommercial transactions when the second respondent was insolvent.
4 Beech J in his reasons dealt with two applications. They were:
(a) The liquidator's application for leave to sell certain assets, including a number of the vehicles and some other property, including parts, tools and other equipment. There were issues between the parties about the ownership of a number of the assets, some of which were registered in the name of the appellant.
(b) The liquidator's application for summary judgment on the plaintiff's claim and on the liquidator's counterclaim.
5 At the hearing of the applications on 15 January 2013, it emerged that the appellant had been made bankrupt earlier that morning.
(Page 4)
6 After the hearing, and on 8 February 2013, Beech J made the following orders:
1. The plaintiff's action (original claim) be stayed under s 60(2) of the Bankruptcy Act until the trustee in the first plaintiff's (Carl William Bell) bankruptcy, after receipt of proper notice, makes an election in writing to prosecute or discontinue the action or until the trustee is deemed to have abandoned the action under s 60(3) of the Bankruptcy Act.
2. Judgment be entered for the first and second plaintiffs by counterclaim (Mr Cribb and Costanoza Pty Ltd) against the second defendant by counterclaim (Allcert Holdings Pty Ltd) in the following terms:
(a) A declaration that Costanoza Pty Ltd (in liquidation) is the owner of the following vehicles:
(i) Bailey Dual axle share dolly with 3.5" Turntable and Kin Pin, registration number 9RF053;
(ii) 1995 Bailey Quad Axle Float with Widening Deck, registration number 8WM645 (together referred to as 'the Lombardi Vehicles').
([b]) Neil Raymond Cribb be granted the power to do all things necessary as the owner of the Lombardi vehicles including the execution of any documents necessary as the registered owner of the vehicles in order to ensure that the vehicles can be registered in the name of Costanoza Pty Ltd (in liquidation) or transferred to third parties.
3. Neil Raymond Cribb and Costanoza Pty Ltd (in liquidation)'s application for summary judgment dated 28 November 2012 be dismissed with respect to the following vehicles:
(a) 1988 Hallmark Tri Axle Flat Deck Trailer with Ring Feeder, registration number 1THG318;
(b) 199[4] Marker Dual Axle Conversion Dolly, registration number 1TEU520; and
(c) 1988 Lusty Tri Axle Flat Deck Trailer, registration number 1TBY001.
4. Otherwise the summary judgment application be adjourned to 21 March 2013.
(Page 5)
- 5. Other than with respect to the Lombardi vehicles, Neil Raymon[d] Cribb's application dated 28 September 2012 for leave to sell assets be adjourned to the same date as fixed pursuant to order 4 above.
6. Neil Raymond Cribb and Costanoza Pty Ltd (in liquidation)'s application for default judgment against the third defendants (by counterclaim) (Accept Enterprises Pty Ltd) be adjourned to the same date as fixed pursuant to order 4 above.
7. Costs in respect of all applications be reserved.
7 The appellant filed his appeal notice in this court on 27 February 2013. The appeal notice identified the decision appealed against as that of Beech J dated 8 February 2013, but did not identify the orders which the appellant wished to have set aside. It is clear that some of the orders of Beech J do not affect the appellant. During oral submissions, the appellant said that he was mainly concerned with the order whereby the first respondent was granted the power to do all things necessary as owner of the Lombardi vehicles to ensure that the vehicles could be registered in the name of Costanoza Pty Ltd (in liquidation), or transferred to third parties (par 2(b) of the orders). The appellant claimed that he had an interest in the Lombardi vehicles.
8 By letter dated 11 March 2013, an officer on behalf of the Official Trustee in Bankruptcy wrote to the respondents' lawyers advising that the action (CIV 1697 of 2012) had vested in the Official Trustee and that the appellant had no standing in this appeal.
9 By letter dated 29 April 2013, the registrar of this court wrote to the appellant and the lawyers for the respondents in the following terms:
10 The Registrar has reviewed the file relating to this appeal.
It appears from documents filed in the primary proceedings that the appellant was made bankrupt on 15 January 2013. In that event, it may be that the appeal notice itself is invalid …
The parties are requested to inform the Court in writing no later than 13 May 2013 as to their views of the status of the appeal under the Bankruptcy Act 1966.
Furthermore, as set out in the Court's letter to the appellant dated 5 March 2013, the appellant was required under the Supreme Court (Court of Appeal) Rules 2005 to file an appellant's case in this appeal by 3 April 2013. The appellant's case is now more than 3 weeks overdue and the appellant is in default.
(Page 6)
- If the appellant considers that the appeal is validly commenced, the Registrar emphasises that the appellant's case must be filed as soon as possible. If no appellant's case is filed by 13 May 2013, the appeal will be referred to a single judge of appeal to consider whether the appeal should be dismissed under rule 43(2)(g) of the Supreme Court (Court of Appeal) Rules 2005 for failure to obey the rules…
11 The appellant did not file the appellant's case, so any errors the appellant alleges Beech J might have made have not been identified. However, the appellant's action concerned property claimed by the appellant. Thus, the appeal must have also related to the same property.
12 If the appellant had any property in the Lombardi vehicles or any other property claimed by the appellant in the action, it has vested in the Official Trustee in Bankruptcy: see s 58 of the Bankruptcy Act 1966 (Cth). The appellant has no right to institute an appeal against a judgment to establish a right to that property. It is the Official Trustee in Bankruptcy that has that right: see s 134(1)(j) of the Bankruptcy Act; Cummings v Claremont Petroleum NL (1996) 185 CLR 124, 138; Samootin v Shea [2010] NSWCA 371 [86] - [88]). The appeal was therefore incompetent.
13 Even if that were not so, the appeal should have been dismissed under r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) because the appellant had not filed the appellant's case and had therefore failed to comply with the rules.
14 The appeal was dismissed for those reasons.
3
2