DEBROSSARD & OFFICIAL TRUSTEE IN BANKRUPTCY
[2016] FamCAFC 217
•4 November 2016
FAMILY COURT OF AUSTRALIA
| DEBROSSARD & OFFICIAL TRUSTEE IN BANKRUPTCY | [2016] FamCAFC 217 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Extension of time to file Notice of Appeal – Where the applicant is five years late in filing the Notice of Appeal – Where there was inadequate explanation for the failure to file a Notice of Appeal in a timely way – Where the appeal would be futile as the property has been sold and the funds disbursed – Application dismissed. |
| Bankruptcy Act 1966 ss 58(1), 116 Family Law Rules 2004 (Cth) r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Y Debrossard |
| RESPONDENT: | Official Trustee in Bankruptcy |
| FILE NUMBER: | WOC | 799 | of | 2007 |
| APPEAL NUMBER: | EA | 157 | of | 2016 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 1 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 August 2011 |
| LOWER COURT MNC: | [2011] FamCA 648 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Metlej of Craddock Murray Neumann |
Orders
The Application in an Appeal filed on 9 September 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Debrossard & Official Trustee in Bankruptcy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: EA 157 of 2016
File Number: WOC 799 of 2007
| Ms Y Debrossard |
Applicant
and
| Official Trustee in Bankruptcy |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 9 September 2016, Ms Y Debrossard (“the wife”) seeks an extension of time in which to file a Notice of Appeal against property orders made by Johnston J on 19 August 2011. On 1 November 2016, after hearing argument on the application, I ordered that the wife’s application be dismissed and that reasons would be delivered at a later date. These are the reasons for that order.
It is necessary for the determination of the application to set out the background facts to this matter which had been litigated in this Court for a number of years.
On 12 July 2007 the wife filed an application for final orders in this Court.
On 7 December 2007 consent orders were made by the Court as between Mr I Debrossard (“the husband”) and the wife in relation to the parties’ property. The effect of the orders was that the husband was to transfer his interest in the former matrimonial home at Town 1 to the wife.
However, on 12 April 2007 the husband had been declared bankrupt.
At the time that the Court made the consent orders the husband owned no property. This was because, as at 26 September 2006, by way of operation of ss 58(1) and 116 of the Bankruptcy Act1966 (Cth), all property of the husband had vested in the Official Trustee in Bankruptcy (“the Official Trustee”). That date was the date of the first act of bankruptcy by the husband. The Official Trustee asserted that it had not been given notice of the application which the husband and wife proposed to make which culminated in the consent orders being made. The wife denied this and said that on 26 June 2007 she notified the Official Trustee in writing that the matrimonial home had been “given to me” in the divorce settlement.
In March 2010 the Official Trustee filed an application in the Court seeking to have the consent orders set aside and on 10 May 2010 his Honour set aside the consent orders on the basis that at the time the orders were made the husband’s property had vested in the Official Trustee and there had been no notice given to the Official Trustee.
The wife then filed an application that the consent orders be reinstated. This application came before Johnston J on 25 February 2011. On 19 August 2011 his Honour made orders which provided that the property of the parties vest in the Official Trustee and that the property be sold. The orders further provided that the wife receive 60 per cent of the proceeds of sale and the balance be paid to the Official Trustee of the husband’s bankrupt estate.
It is those orders which are now the subject of this appeal.
The application
The wife appeared for herself and prepared the documents supporting the application. In her affidavit she indicated that she wishes to appeal to correct errors of the trial judge. As to the delay in bringing the appeal, the wife argued that she is unrepresented and cannot afford the cost of engaging a solicitor, and that she is not entitled to legal aid. She further said that on the judgment being delivered she had to move out of the house and find other accommodation. She said that she had no money to pay for legal advice. Despite having brought proceedings in the District Court of NSW against the Official Trustee contending a breach of s 121 of the Family Law Act 1975 (Cth) (“the Act”) and an application in the Federal Circuit Court asserting a breach of the same, she contended that she had been unable, by reason of having no funds, to appeal his Honour’s orders within the time specified in the Family Law Rules 2004 (Cth) (“the Rules”).
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. The time in which the wife could appeal expired in September 2011.
The principles by which this application falls to be considered emerge from Gallo v Dawson (1990) 93 ALR 479 and in the judgment of McHugh J at 480 - 481 his Honour said:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
(Citations omitted)
A solicitor appeared on behalf of the Official Trustee. He informed the Court that on 31 July 2012 the property was sold in accordance with his Honour’s orders and the proceeds disbursed with 40 per cent of the net proceedings being paid to the Official Trustee. He further contended that the husband’s estate has no funds remaining and such money as was received has been paid in satisfaction of the husband’s creditors. Thus, it was argued that to grant an extension of time in which to appeal would be futile.
The reasons advanced by the wife as to why she did not bring the appeal in time are wholly inadequate to explain the delay. Further, the delay of five years is, of itself, sufficient in this matter itself to cause the application to be dismissed. I further accept the argument that in any event, any appeal would be futile because the funds have been disbursed.
For the above reasons the application was dismissed.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 4 November 2016.
Associate:
Date: 4 November 2016