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 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…
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- Case
- [2023] ACTSC 161
- Decision Date
CaseChat Overview and Summary
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.
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