Dellios v Zegarac

[2006] FCA 1733

FEDERAL COURT OF AUSTRALIA

Dellios v Zegarac [2006] FCA 1733

Bankruptcy – Sequestration order made against respondent – Respondent filing notice of motion seeking extension of time to appeal Federal Magistrate’s decision – Whether “special reasons” pursuant to O 52 r 15 (2) Federal Court Rules – Whether appeal is bound to fail – Whether respondent has a counter claim set off or cross-demand equal to or exceeding the amount of judgment debt – No basis for extending the time for compliance

Bankruptcy Act 1966 (Cth), s 40(1)(g)
Federal Court of Australia Act 1976 (Cth), s 24(1)(d)

Jess v Scott (1986) 12 FCR 187, applied
Low v Commonwealth [2001] FCA 702, followed

PAUL DELLIOS (TRADING AS DELLIOS WEST AND CO) v SLAVICA ZEGARAC

VID 159 OF 2006

MARSHALL J
13 DECEMBER 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 159 OF 2006

BETWEEN:	PAUL DELLIOS (TRADING AS DELLIOS WEST AND CO) Applicant Creditor
AND:	SLAVICA ZEGARAC Respondent Debtor

JUDGE:	MARSHALL J
DATE OF ORDER:	13 DECEMBER 2006
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Paragraphs 2, 5, 6, 7, 8 and 9 of the respondent debtor’s motion of 28 November 2006 is dismissed.

2.The respondent debtor pay the applicant creditor’s and trustees’ costs of, and associated with the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 159 OF 2006

BETWEEN:	PAUL DELLIOS (TRADING AS DELLIOS WEST AND CO) Applicant Creditor
AND:	SLAVICA ZEGARAC Respondent Debtor

JUDGE:	MARSHALL J
DATE:	13 DECEMBER 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The substantive proceeding is an application by the respondent debtor, Ms Zegarac, to review a sequestration order made by Registrar Mussett on 18 May 2006. In that proceeding, on 28 November 2006, Ms Zegarac filed a notice of motion, paragraph 2 of which seeks the following relief:

   “Leave of the Court to appeal the Federal Magistrate Phipps decision out of time.”

2. I understand the proposed relief to be a request for the Court to extend the time within which Ms Zegarac is allowed to appeal from the judgment of Federal Magistrate Phipps of 16 December 2005. In that judgment Phipps FM dismissed Ms Zegarac’s application to set aside a bankruptcy notice dated 18 July 2005.

3. This Court has jurisdiction to hear appeals from certain judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth. That includes appeals from judgments in matters arising under the Bankruptcy Act 1966 (Cth); see s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).

4. Under O 52 r 15(1) of the Rules of Court, a notice of appeal must be filed within 21 days after the date of the judgment appealed from or within such further time as is allowed upon a motion being filed within those 21 days. Importantly, O 52 r 15(2) provides:

   “Notwithstanding anything in the preceding sub-rule, the Court or a judge…