De Varda v Lowbeer

[2013] FCCA 899

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE VARDA & ORS v LOWBEER [2013] FCCA 899

Catchwords:
BANKRUPTCY – Bankruptcy notice – extension of time – where application for extension of time based on cross-claim the subject of which was previously considered by another court – where applicant claimed an appeal of previous decision pending – whether to extend time for compliance with bankruptcy notice.

PRACTICE AND PROCEDURE – Trial by jury – whether applicant entitled to trial by jury in Federal Circuit Court of Australia.

PRACTICE AND PROCEDURE – Joinder of parties – whether to allow application to join respondents to proceedings.

Legislation:  

Federal Circuit Court of Australia Act1999 (Cth) s.53

First Applicant: JOSEPH DE VARDA

Second Applicant: RABBI DR. SAMUEL TOV-LEV

Third Applicant: DAVID CLIFFE

Respondent: JOHN JOSEPH LOWBEER

File Number: SYG 1276 of 2013

Judgment of: Judge Raphael

Hearing date: 15 July 2013

Date of Last Submission: 15 July 2013

Delivered at: Sydney

Delivered on: 15 July 2013

REPRESENTATION

For the Applicants: In person

Solicitors for the Respondent: Austin Legal

ORDERS

1. Amended application dismissed.

2. Applicants to pay the Respondent’s costs including any reserved costs such costs to be taxed if not agreed pursuant to the Federal Circuit Court (Bankruptcy) Rules 2006 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1276 of 2013

JOSEPH DE VARDA

First Applicant

RABBI DR. SAMUEL TOV-LEV

Second Applicant

DAVID CLIFFE

Third Applicant

And

JOHN JOSEPH LOWBEER

Respondent

REASONS FOR JUDGMENT

1. It is always disturbing when there comes before this Court disputes of a community nature, and this is one of them.  It would appear that there is a dispute between various members of the Strathfield Synagogue concerning the future of that institution.  That dispute has been the subject of proceedings in the Supreme Court of New South Wales and the Consumer Trade and Tenancy Tribunal of New South Wales.  In each case the moving parties, who appear to be a group of dissatisfied congregants and their rabbi, have been unsuccessful. 

2. In respect of the Supreme Court proceedings an assessment of party and party costs was made, and the appropriate orders having been entered, a judgment issued in the sum of $48,212.00 against the congregants.  Mr De Varda appears to be the only congregant who is involved in the proceedings before me.  Mr De Varda tells me that the other defendants or judgment debtors may not have been served, but this is not, to my mind, of any importance.  The bankruptcy notice was issued on 21 May 2013 and has come before this Court on previous occasions, at which it has been adjourned, eventually being brought into court before me today. 

3. Mr De Varda seeks an order from the court extending time for compliance with the bankruptcy notice.  The grounds upon which he does this is by production of a document titled “A Cross-claim”, which upon my consideration of it appears to rehearse the complaints that he made before the Supreme Court in respect of the community dispute.   Those complaints having been determined by the Supreme Court and having been the subject of at least a review by another judge of that court, it is not appropriate that they be the subject matter of further proceedings here, nor do they constitute a good reason for either dismissing or extending time for compliance with the bankruptcy notice.

4. Mr De Varda tells me that he is appealing against the latest decision in the Supreme Court in which an application made, apparently on very similar grounds to the original proceedings, was dismissed by Nicholas J. of that court.  He says that an appeal is pending.  I have no real information concerning the appeal nor am I able to judge its prospects of success.  But it would seem from the history of this matter that those prospects might not be particularly high.

5. I do not believe that it is appropriate, in those circumstances, to further extend time for compliance with the bankruptcy notice.  A bankruptcy notice is only a first stage in bankruptcy proceedings.  If the act of bankruptcy is committed, then the creditor will have to commence proceedings for a sequestration order and present a petition.  It is more appropriate that at that time, if there are serious ongoing disputes between the parties that are relevant to a judgment upon a costs order, the matter be reconsidered. 

6. During the course of a somewhat emotional submission by Mr De Varda, he suggested that he was entitled to trial by jury in respect of this matter. Under s.53 of the Federal Circuit Court of Australia Act1999 (Cth), a civil proceeding between parties in this court is to be determined without a jury. Under the Bankruptcy Act 1966 (Cth)[1] s.30(3), the Federal Court has the discretion, upon request, to direct the trial of a question of fact to be determined by a jury.  There are provisions in the Act whereby matters are tried on indictment, but those matters are always tried by the Federal Court, and in any event, this is not such a matter.

   [1] The Act.

7. The amended application seeking that time for compliance be extended so that two persons named therein be joined as respondents or cross-respondents to the proceeding, be dismissed.   The applicants shall pay the respondent’s costs, including any reserved costs, such costs to be taxed if not agreed pursuant to the Federal Circuit Court (Bankruptcy) Rules 2006. 

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 July 2013