De Andrade v Da Vesi Construction Group Pty Ltd - [2023] ACTSC 161

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	De Andrade v Da Vesi Construction Group Pty Ltd
Citation:	[2023] ACTSC 161
Hearing Date:	21 June 2023
DecisionDate:	29 June 2023
Before:	McWilliam J
Decision:	(1) The application for leave to appeal out of time, filed 15 May 2023, is dismissed for lack of competency. (2) The applicant is to pay the respondent’s costs.
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Application for leave to appeal out of time – where applicant is bankrupt – applicant lacks standing to bring application – application dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth) ss 5, 58, 60, 153 Court Procedures Rules 2006 (ACT)
Cases Cited:	Cummings v Claremont Petroleum NL(1996) 185 CLR 124 Da Vesi Construction Group Pty Ltd v De Andrade [2021] FCA 1033 Samootin v Shea [2010] NSWCA 371 Want v Moss (1889) 10 NSWR (L) 274
Parties:	Rubie De Andrade ( Applicant) Da Vesi Construction Group Pty Ltd ( Respondent)
Representation:	Counsel J O’Keefe ( Applicant) A Chakrabarty ( Respondent)
Solicitors Tu’ulakitau McGuire ( Applicant) Adero Law ( Respondent)
File Number:	SCA 27 of 2023
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Fryar Date of Decision: 24 January 2019 Case Title: Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade Citation: [2019] ACTMC 1

McWILLIAM J:

The applicant, Ms De Andrade, is an individual who is currently an undischarged bankrupt. The bankruptcy occurred as a consequence of an order made in the Federal Court on 13 August 2021. This was the applicant’s second bankruptcy, the earlier bankruptcy having occurred as a result of a sequestration order made in October 2018.

Prior to the first entry into bankruptcy, in November and December 2017, the parties had litigated in the Magistrates Court over a breach of contract dispute. Judgment was delivered in the Magistrates Court on 24 January 2019, after the first sequestration order was made.

The respondent in this proceeding, Da Vesi Construction Group Pty Ltd, was successful, with judgment entered in its favour: Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade [2019] ACTMC 1 (primary judgment).

Because the applicant had been made bankrupt in the meantime, she believed she was unable to appeal the decision without the Trustee in Bankruptcy’s permission. She now takes a different view, and by application filed 15 May 2023, has sought the leave of the Court to appeal the primary judgment.

The respondent opposed the grant of leave on the basis of standing, and otherwise on the basis that the application for leave was made more than four years outside the time limit provided for under the Court Procedures Rules 2006 (ACT), the explanation for the delay was unsatisfactory, the proposed appeal had little to no merit and it would suffer prejudice, due to the judgment debt now having been lodged as a proof of debt with the applicant’s Trustee in Bankruptcy.

Does the applicant have standing…

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.

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Details

Case: [2023] ACTSC 161
Decision Date

CaseChat Overview and Summary

In the case of Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade, the applicant, Rubie De Andrade, sought leave to appeal a primary judgment that had been entered in favour of the respondent, Da Vesi Construction Group Pty Ltd. The primary judgment was issued in 2019 and concerned a dispute over moneys owed under a contract or in quantum meruit. Da Vesi Construction Group Pty Ltd opposed the application for leave on the basis of standing and on the basis that the application was made more than four years after the time limit provided for under the Court Procedures Rules 2006 (ACT), the explanation for the delay was unsatisfactory, the proposed appeal had little to no merit and it would suffer prejudice, due to the judgment debt now having been lodged as a proof of debt with the applicant’s Trustee in Bankruptcy.

The court was required to determine whether the applicant had standing to bring the application for leave to appeal. This is because only a person who has standing to raise the question can bring it for determination before the Court. The court considered whether the applicant was seeking to enforce a right, and in whom that right was vested. Under the Bankruptcy Act 1966 (Cth), the applicant’s money fell within the definition of property. Upon the applicant becoming bankrupt, her property vested in the Official Trustee (or the subsequent registered trustee). The court considered that the right of a person who became bankrupt to appeal against a judgment holding the person liable to pay a money sum was not “property of the bankrupt”. However, the right to appeal itself was that of the Trustee, not the bankrupt applicant.

The court held that if the leave to appeal application were granted, extending the time to appeal, the right to appeal itself was that of the Trustee, not the bankrupt applicant. The applicant had no interest in the proceeding when the application for leave was filed in May 2023 because the money she had at the time became vested in the Trustee in Bankruptcy. The court further held that the application was made more than four years outside the time limit provided for under the Court Procedures Rules 2006 (ACT), the explanation for the delay was unsatisfactory, the proposed appeal had little to no merit and it would suffer prejudice, due to the judgment debt now having been lodged as a proof of debt with the applicant’s Trustee in Bankruptcy. Accordingly, the application for leave to appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent in this proceeding, Da Vesi Construction Group Pty Ltd, was successful, with judgment entered in its favour: Da Vesi Construction Group Pty Ltd (ACN 122 278 735) v Rubie De Andrade [2019] ACTMC 1 (primary judgment). Because the applicant had been made bankrupt in the meantime, she believed she was unable to appeal the decision without the Trustee in Bankruptcy’s permission. She now takes a different view, and by application filed 15 May 2023, has sought the leave of the Court to appeal the primary judgment. The respondent opposed the grant of leave on the basis of standing, and otherwise on the basis that the application for leave was made more than four years outside the time limit provided for under the Court Procedures Rules 2006 (ACT), the explanation for the delay was unsatisfactory, the proposed appeal had little to no merit and it would suffer prejudice, due to the judgment debt now having been lodged as a proof of debt with the applicant’s Trustee in Bankruptcy. The first question for determination must be whether the applicant has standing to bring the application for leave to appeal. That is because only a person who has standing to raise the question can bring it for determination before the Court – a principle that has been described as “fundamental” to the operation of the legal system: Samootin v Shea [2010] NSWCA 371 (Samootin) at [63] per Campbell JA (Beazley and Hodgson JJA agreeing). Campbell JA went on to say at [64]-[65]: The question of standing here requires a consideration of what right the applicant is seeking to enforce, and in whom the right is the vested, by reference to the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). In the proceedings in the Magistrates Court, the applicant was defending a claim by the respondent for moneys said to be owed by her under contract or in quantum meruit. Under s 5 of the Bankruptcy Act, the applicant’s money falls within the definition of property: Section 58 of the Bankruptcy Act provides for the vesting of the applicant’s property upon the applicant becoming bankrupt. The money she had at the time became vested in the Official Trustee (or the subsequent registered trustee): s 58(1). In Cummings v Claremont Petroleum NL(1996) 185 CLR 124 (Cummings) at 134 it was held that the right of a person who became bankrupt to appeal against a judgment holding the person liable to pay a money sum was not “property of the bankrupt”. However (emphasis added): The above statement was applied in Samootin at [84]-[85], where an application for leave to appeal was under consideration. It was stated that if the leave to appeal application were granted, extending the time to appeal, the right to appeal itself was that of the Trustee, not the bankrupt applicant. Campbell JA later returned (at [88]) to Cummings at 136, where Brennan CJ, Gaudron and McHugh JJ held: Campbell J then explained why this was so at [90]: Similarly, in the application for leave to appeal here, the applicant is seeking to appeal a judgment where she was ordered to pay money. If successful, she would achieve a reduction in her liabilities. However, that liability can only be satisfied out of money that has vested in the Trustee in Bankruptcy. For that reason, the applicant had no interest in the proceeding when the application for leave was filed in May 2023.

Ratio Decidendi

Legal Principle Established

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