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Cheung v Burness (Trustee)

Cheung v Burness (Trustee)

Case [2018] FCA 1145 2 August 2018

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FEDERAL COURT OF AUSTRALIA
Cheung v Burness (Trustee) [2018] FCA 1145

Appeal from: Burness and Jess as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098

File number: VID 1015 of 2017

Judge: DAVIES J

Date of judgment: 2 August 2018

Catchwords: BANKRUPTCY AND INSOLVENCY – appeal from decision of the Federal Circuit Court – application for extension of time in which to appeal orders – application for annulment of bankruptcy – discretion to annul bankruptcy under section 153B of the Bankruptcy Act 1966 (Cth) – principles applicable to exercise of the discretion – principles applicable to granting extension of time to appeal - where lengthy delay in bringing application to appeal – adequacy of explanation for delay

Legislation: Bankruptcy Act 1966 (Cth)

Cases cited:
BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400

Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239

Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307

Burness and Jess as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098

Capital Finance Australia Ltd v Cheung [2016] FCCA 352

Cheung v Burness (Trustee) [2016] FCA 1381

Cheung v Burness (Trustee) (No 2) [2016] FCA 1462

Cottrell v Wilcox [2002] FCA 1115

Francis v Egglestone Mitchell Lawyers Pty Ltd [2014] FCAFC 18

Hacker v Weston [2015] FCA 363

House v R (1936) 55 CLR 499

Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Marek v Tregenza (1963) 109 CLR 1

Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197

Parker v The Queen [2002] FCAFC 133

Re Lawson (1939) 11 ABC 137

Re Papps; ex parte Tapp (1997) 78 FCR 524

Re Williams (1968) 13 FLR 10

Rigg v Baker [2006] FCAFC 179

Shaw v Yarranova Pty Ltd [2016] FCA 88

Date of hearing: 13 July 2018

Registry: Victoria

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Category: Catchwords

Number of paragraphs: 17

Counsel for the Applicant: The Applicant appeared in person

Counsel for the First Respondent:
Mr S Waldren

Solicitor for the First Respondent: Hutchinson Legal

Counsel for the Second Respondent: Mr B Carew

Solicitor for the Second Respondent: Kemp Strang

ORDERS

VID 1015 of 2017

BETWEEN:
KT CHEUNG

Applicant

AND:
PAUL ANDREW BURNESS AND MATTHEW JAMES JESS IN THEIR CAPACITY AS TRUSTEES OF THE BANKRUPT ESTATE OF KT CHEUNG VIC 550 OF 2011/1

First Respondent

CAPITAL FINANCE AUSTRALIA LIMITED

Second Respondent

JUDGE:

DAVIES J

DATE OF ORDER:

2 AUGUST 2018

THE COURT ORDERS THAT:
1.The application filed 18 September 2017 for an extension of time to appeal the orders of the Federal Circuit Court of Australia pronounced on 31 May 2017 in proceeding number (P) MLG 1426/2014 and proceeding number (P) MLG 881/2014 be dismissed.
2.Pursuant to Rule 1.32 of the Federal Court Rules 2011, the application for an extension of time be treated as the filing of an appeal from the orders of the Federal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheung v Burness (Trustee)

Details

AGLC: Cheung v Burness (Trustee) [2018] FCA 1145
Case: [2018] FCA 1145
Decision Date: 2 August 2018

CaseChat Overview and Summary

The appeal in Cheung v Burness (Trustee) involved the appellant, Cheung, seeking an extension of time to appeal against orders made by the Federal Circuit Court of Australia in relation to two proceedings, namely proceeding number (P) MLG 1426/2014 and proceeding number (P) MLG 881/2014. Cheung also sought to annul his bankruptcy. The respondents in the appeal were the trustee of Cheung's estate and a creditor. The primary legal issues before the court were whether the appellant had provided an adequate explanation for the delay in bringing the application for an extension of time and whether the principles governing the exercise of the court's discretion to annul bankruptcy were correctly applied by the Federal Circuit Court.

The court found that the appellant had not provided a satisfactory explanation for the significant delay in bringing the application for an extension of time to appeal. The appellant had argued that the delay was due to his belief that the Federal Circuit Court had the power to extend time for the appeal, and because of his belief that the appeal had been dismissed. The court held that these reasons were insufficient to warrant an extension of time. In relation to the application to annul the bankruptcy, the court found that the Federal Circuit Court had correctly exercised its discretion in accordance with the principles set out in relevant authorities. The court noted that the appellant had not demonstrated any exceptional circumstances warranting the annulment of his bankruptcy.

The appeal was dismissed, and the application for an extension of time was treated as the filing of an appeal. The appellant was ordered to pay the costs of the respondents. The costs were to be taxed if the parties could not agree on the amount.

Orders

Orders of the court

1. The application filed 18 September 2017 for an extension of time to appeal the orders of the Federal Circuit Court of Australia pronounced on 31 May 2017 in proceeding number (P) MLG 1426/2014 and proceeding number (P) MLG 881/2014 be dismissed.

2. Pursuant to Rule 1.32 of the Federal Court Rules 2011, the application for an extension of time be treated as the filing of an appeal from the orders of the Federal Circuit Court of Australia pronounced on 4 September 2017 in proceeding number (P) MLG 1426/2014 and proceeding number (P) MLG 881/2014.

3. The appeal be dismissed.

4. The applicant pay the costs of the respondents, such costs to be taxed in default of agreement.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Cheung v Burness (Trustee) [2018] FCA 1145

Most Recent Citation

Williamson v Michell (Trustee) [2019] FCA 481

Cases citing this decision · 1 of 1 shown

Williamson v Michell (Trustee)
[2019] FCA 481 Para 11

…his Court in Francis v Eggleston Mitchell Lawyers Pty Ltd (2014) 12 ABC(NS) 25 at 30-31; [2014] FCAFC 18 at [16]; see also Cheung v Burness (Trustee) [2018] FCA 1145 at [5].…

View all 1 citing cases →

Cases cited in this decision · 18 of 18 shown

BLD16 v Minister for Immigration and Border Protection
[2017] FCA 1400 Para 10

…ment (1984) 3 FCR 344 at 348; Parker v The Queen [2002] FCAFC 133 at [6]. As Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 stated at [3]: … the time limits prescribed by the Court Rules are not mere aspirational guidelines. They are intended to mark out the period in which…
Burness and Jess As Trustees of the Bankrupt Estate of KT Cheung v Cheung; And; Cheung v Burness and Jess As Trustees of the Bankrupt Estate of KT Cheung and Anor
[2017] FCCA 1098 Para 2

…long history, which is set out in detail in the judgment appealed from ( Burness and Jess as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098) and also in the judgment of Moshinsky J in Cheung v Burness (Trustee) [2016] FCA 1381. In short, a sequestration order was made against the estate of…
Cheung v Burness (Trustee)
[2016] FCA 1381 Para 2

…ss as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098) and also in the judgment of Moshinsky J in Cheung v Burness (Trustee) [2016] FCA 1381. In short, a sequestration order was made against the estate of Ms Cheung on a petition of the second respondent (“ Capital ”) on 17 February 2011. The…
Capital Finance Australia Ltd; v Cheung and Burness and Anor As Trustees v Cheung and Cheung; v Burness and Anor As Trustees and Anor
[2016] FCCA 352 Para 2

…he deliver up to the trustees vacant possession of the property and made related ancillary orders: Capital Finance Australia Ltd v Cheung [2016] FCCA 352.…
Shaw v Yarranova Pty Ltd
[2016] FCA 88 Para 5

…e onus is upon the bankrupt to satisfy the Court that the power should be exercised: Hacker v Weston [2015] FCA 363 at [18]; Shaw v Yarranova Pty Ltd [2016] FCA 88 at [6]. In Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] (in a passage approved by the Full Court in Francis v Egglestone Mitchel…
Hacker v Weston
[2015] FCA 363 Para 5

…cial Trustee in Bankruptcy (2001) 183 ALR 239. The onus is upon the bankrupt to satisfy the Court that the power should be exercised: Hacker v Weston [2015] FCA 363 at [18]; Shaw v Yarranova Pty Ltd [2016] FCA 88 at [6]. In Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] (in a passage approved b…
Francis v Eggleston Mitchell Lawyers Pty Ltd
[2014] FCAFC 18 Para 5

…v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] (in a passage approved by the Full Court in Francis v Egglestone Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16]), Tracey J summarised the principles applicable to the exercise of the power conferred by s 153B, which included that: (a)An order can be mad…
Bulic v Commonwealth Bank of Australia Ltd
[2007] FCA 307 Para 5

…ld be exercised: Hacker v Weston [2015] FCA 363 at [18]; Shaw v Yarranova Pty Ltd [2016] FCA 88 at [6]. In Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 at [12] (in a passage approved by the Full Court in Francis v Egglestone Mitchell Lawyers Pty Ltd [2014] FCAFC 18 at [16]), Tracey J summarised the p…
Cottrell v Wilcox
[2002] FCA 1115 Para 5

…les v Official Trustee at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7].…
Parker v The Queen
[2002] FCAFC 133 Para 10

…convenience of a party: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348; Parker v The Queen [2002] FCAFC 133 at [6]. As Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 stated at [3]: … the time limits prescribed by the Co…
Ozer v Australian Liquor Marketers Pty Ltd
[2001] FCA 1197 Para 6

…rcise of the Court’s discretion include the conduct of the bankrupt ( Marek v Tregenza (1963) 109 CLR 1; Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 at [29]–[34]) and whether the annulment is for the benefit of creditors and “will be conducive or detrimental to commercial morality and to the interes…
Boles v Official Trustee in Bankruptcy
[2001] FCA 639 Para 5

…der ought not to have been made, the Court can, in appropriate circumstances, decline to annul the bankruptcy: Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239. The onus is upon the bankrupt to satisfy the Court that the power should be exercised: Hacker v Weston [2015] FCA 363 at [18]; Shaw v Yarranova Pty…
Re Papps; Ex parte Tapp
[1997] FCA 1031 Para 5

…at which the sequestration order was made: Re Williams (1968) 13 FLR 10 at 24–5; Boles v Official Trustee at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7].…
Hunter Valley Developments Pty Ltd v Cohen
[1984] FCA 186 Para 10

…ourt Rules are not to be ignored to suit the convenience of a party: Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348; Parker v The Queen [2002] FCAFC 133 at [6]. As Derrington J in BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 stated at…
House v R
[1936] HCA 40 Para 12

…ed involved the exercise of a discretion, Ms Cheung must therefore show an error in the exercise of the discretion of the type described in House v R (1936) 55 CLR 499. In that case the majority explained that it is not enough that the appellate court be persuaded that it would, or might, have made a different decis…
Marek v Tregenza
[1963] HCA 40 Para 6

…Other matters relevant to the exercise of the Court’s discretion include the conduct of the bankrupt ( Marek v Tregenza (1963) 109 CLR 1; Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 at [29]–[34]) and whether the annulment is for the benefit of creditors and “will be conducive or detrimental to commer…
Rigg v Baker
[2006] FCAFC 179 Para 5

…de: Re Williams (1968) 13 FLR 10 at 24–5; Boles v Official Trustee at 247; Re Papps; ex parte Tapp (1997) 78 FCR 524 at 531; Rigg v Baker [2006] FCAFC 179 at [79]; Cottrell v Wilcox [2002] FCA 1115 at [7].…
Cheung v Burness (Trustee) (No 2)
[2016] FCA 1462 Para 3

…g the annulment application and the order for possession and sale and remitted both matters to the FCC: see too Cheung v Burness (Trustee) (No 2) [2016] FCA 1462. Both applications were reheard by Judge Kelly on 6 March 2017 and judgment was delivered on 31 May 2017: Burness and Jess as Trustees v Cheung . Capital…

Legislation cited in this decision · 2

Bankruptcy Act 1966 (Cth)
1 mention (from Para 4)
Federal Court Rules 2011 (Cth)
1 mention

Appeal from:	Burness and Jess as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098
File number:	VID 1015 of 2017
Judge:	DAVIES J
Date of judgment:	2 August 2018
Catchwords:	BANKRUPTCY AND INSOLVENCY – appeal from decision of the Federal Circuit Court – application for extension of time in which to appeal orders – application for annulment of bankruptcy – discretion to annul bankruptcy under section 153B of the Bankruptcy Act 1966 (Cth) – principles applicable to exercise of the discretion – principles applicable to granting extension of time to appeal - where lengthy delay in bringing application to appeal – adequacy of explanation for delay
Legislation:	Bankruptcy Act 1966 (Cth)
Cases cited:	BLD16 v Minister for Immigration and Border Protection [2017] FCA 1400 Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239 Bulic v Commonwealth Bank of Australia Ltd [2007] FCA 307 Burness and Jess as Trustees of the Bankrupt Estate of KT Cheung v Cheung [2017] FCCA 1098 Capital Finance Australia Ltd v Cheung [2016] FCCA 352 Cheung v Burness (Trustee) [2016] FCA 1381 Cheung v Burness (Trustee) (No 2) [2016] FCA 1462 Cottrell v Wilcox [2002] FCA 1115 Francis v Egglestone Mitchell Lawyers Pty Ltd [2014] FCAFC 18 Hacker v Weston [2015] FCA 363 House v R (1936) 55 CLR 499 Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 Marek v Tregenza (1963) 109 CLR 1 Ozer v Australian Liquor Marketers Pty Ltd [2001] FCA 1197 Parker v The Queen [2002] FCAFC 133 Re Lawson (1939) 11 ABC 137 Re Papps; ex parte Tapp (1997) 78 FCR 524 Re Williams (1968) 13 FLR 10 Rigg v Baker [2006] FCAFC 179 Shaw v Yarranova Pty Ltd [2016] FCA 88
Date of hearing:	13 July 2018
Registry:	Victoria
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	17
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr S Waldren
Solicitor for the First Respondent:	Hutchinson Legal
Counsel for the Second Respondent:	Mr B Carew
Solicitor for the Second Respondent:	Kemp Strang