Di Pan v MacARTHUR Centralshopping Centre Pty Ltd - [2022] QCA 150

[2022] QCA 150

COURT OF APPEAL

BOND JA

Appeal No 7703 of 2022
DC No 1706 of 2021

DI PAN Appellant/Respondent

MacARTHUR CENTRAL
SHOPPING CENTRE PTY LTD Respondent/Applicant
ACN 119 813 795

BRISBANE

FRIDAY, 12 AUGUST 2022

JUDGMENT

BOND JA:

On 6 July 2021, the applicant respondent filed a claim and statement of claim against the appellant defendant in the District Court claiming money owed for outstanding rent and damages for breach of a lease. I will refer to the applicant respondent simply as “the respondent” and I will refer to the appellant defendant simply as “the appellant”. On 23 July 2021, the appellant filed a notice of intention to defend and defence.
The respondent was successful in obtaining a summary judgment against the defendant on 11 November 2021 in the sum of just over $53,000 together with damages to be assessed. No notice of appeal was filed within time, the time for filing a notice of appeal expiring on 10 December 2021.
The respondent, now a judgment creditor, became the petitioning creditor in bankruptcy proceedings in relation to the appellant. On 30 March 2022, a sequestration order was made against her estate by Registrar Loxton in the Federal Circuit and Family Court of Australia (Division 2). The judgment debt formed the basis of the respondent’s bankruptcy notice and non-compliance with the bankruptcy notice was the foundation of the sequestration order against her estate.
On 20 April 2022, the appellant had applied to the Federal Circuit and Family Court of Australia for review of the sequestration order. That application is an application pursuant to s 100 of the Federal Circuit and Family Court of Australia Act and permits the Court to make any order or orders it thinks fit in relation to the sequestration order made by the registrar. I am told the application for review is listed for a review hearing, at least, early next week. It is not clear when the application might be decided and I am unable to assess its prospects.
On 30 June 2022, the appellant filed a document called “Application to Court of Appeal” which does not appear to be in proper form but appears to be the document that she wishes to have regarded as a notice of appeal. The possible inadequacies of form of that document may presently be put aside.
I should observe that Ms Pan represents herself and her affidavit material deposes to the fact that English is not her first language and she has found difficulty in following the complexities of court procedure in this Court and the Federal Circuit and Family Court. Ms Pan represented herself before me and although her command of the English language was satisfactory, it was apparent that she struggled with following the legal complexity. Those observations, of course, are not meant to be a personal criticism of her in the slightest. These matters are complex to laypeople.
The problem facing her is that the fact of a sequestration order has certain legal…

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: [2022] QCA 150
Decision Date: 12 AUGUST 2022

CaseChat Overview and Summary

Di Pan, an appellant and defendant, appealed against a District Court judgment obtained by MacARTHUR Centralshopping Centre Pty Ltd, the respondent and plaintiff. The District Court had granted the respondent a summary judgment against the appellant for an amount of just over $53,000, together with damages to be assessed. The appellant had failed to file a notice of appeal within the requisite time, leading to the entry of judgment. Following this, the respondent pursued bankruptcy proceedings against the appellant, resulting in a sequestration order being made against the appellant's estate. The appellant subsequently filed an application in the Federal Circuit and Family Court of Australia to review the sequestration order. The appellant then filed a document in the Court of Appeal, which the Court treated as a notice of appeal against the District Court judgment. The appeal raised questions about the appellant's standing to appeal, the effect of the sequestration order, and the appropriate remedy available to the appellant.

The Court of Appeal needed to decide whether the appellant had standing to appeal the District Court judgment, given that a sequestration order had been made against her estate. The Court noted that the sequestration order had divested the appellant of her interest in property and liability for provable debts, rendering her incapable of pursuing an appeal in her personal capacity. The Court also had to consider whether there were any alternative remedies available to the appellant. The Court observed that the Official Trustee, who had acquired the appellant's right to appeal, had not expressed an intention to prosecute the appeal. The appellant argued that the correct amount she owed was a little over $26,000, not the $53,000 determined by the District Court, and sought orders for costs and compensation for emotional distress. However, the Court held that the appellant did not have standing to pursue the appeal before it and was instead closed out from the remedy of herself pursuing an appeal in respect of the District Court judgment at that time.

The Court of Appeal determined that the appellant did not have standing to pursue the appeal against the District Court judgment due to the sequestration order made against her estate. The Court held that the sequestration order had divested the appellant of her interest in property and liability for provable debts, rendering her incapable of pursuing the appeal in her personal capacity. The Court also noted that the Official Trustee had not expressed an intention to prosecute the appeal. The Court concluded that the appellant was closed out from the remedy of herself pursuing an appeal in respect of the District Court judgment at that time. The Court set aside the appellant's notice of appeal and ordered the appellant to pay the respondent's costs of the application.

The Court of Appeal made an order that the appellant's notice of appeal be set aside on the basis that she had no standing to institute or continue the appeal at that time. The Court also ordered the appellant to pay the respondent's costs of the application. The Court held that the appellant did not have standing to pursue the appeal due to the sequestration order made against her estate, which had divested her of her interest in property and liability for provable debts. The Court observed that the Official Trustee had not expressed an intention to prosecute the appeal and concluded that the appellant was closed out from the remedy of herself pursuing an appeal in respect of the District Court judgment at that time.

Orders