El-Hanania v Vella - [2019] FCCA 1555

FEDERAL CIRCUIT COURT OF AUSTRALIA

EL-HANANIA v VELLA

[2019] FCCA 1555

Catchwords:
BANKRUPTCY – PRACTICE & PROCEDURE – Application to correct order or orders under the “slip rule” to include an order under s.41(6A) of the Bankruptcy Act 1966 (Cth) (Act) extending the time for compliance with the requirements of a bankruptcy notice – whether in the circumstances of this case the slip rule is available to correct orders in this manner – whether there is power under s.41(6A) of the Act to order an extension of time after the time for compliance with the requirements of the bankruptcy notice, as already extended by an order under s.41(6A) of the Act, has expired – whether in the exercise of its discretion the Court should decline to make an order extending time or to apply the slip rule – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), ss.33(1)(c), 41(6A)

Federal Court Rules 2011 (Cth), reg.39.05

Cases cited:

Agrillo v Codisposto [1994] FCA 1561
Austruc v Aca; Aca v Sarlos and Anor [2004] NSWSC 131
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Flint v Richard Busuttil & Co Pty Ltd [2013] FCAFC [13]
Heywood v Sharpe [2014] FCCA 2999
Lavin v Toppi & Anor [2014] FCCA 1228
Re Taylor; Ex parte Deputy Commissioner for Taxation (Cth) (1983) 74 FLR 377
Streimer v Tamas [1981] FCA 123

Applicant:

SABA EL-HANANIA

Respondent:

ELON JOSEPH VELLA

File Number:

SYG 2258 of 2018

Judgment of:

Judge Manousaridis

Hearing dates:

9, 31 May 2019, 7 June 2019

Date of Last Submission:

8 July 2019

Delivered at:

Sydney

Delivered on:

9 July 2019

REPRESENTATION

Counsel for the Applicant:

Mr J T Johnson and Mr Y Chen

Solicitors for the Applicant:

Saba El-Hanania Lawyers

Solicitors for the Respondent:

Mr B Sewell of Sewell & Kettle Lawyers

ORDERS

The interim application filed by the applicant on 10 April 2019 is dismissed.
The costs of the interim application are reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2258 of 2018

SABA EL-HANANIA

Applicant

And

ELON JOSEPH VELLA

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an interim application filed by the applicant, Mr El-Hanania, on 10 April 2019 seeking an order that the time for complying with the requirements of a bankruptcy notice served on him be extended. Mr El-Hanania seeks the order under r.39.05 of the Federal Court Rules 2011 (Cth) (FCR), as “picked up in the Federal Circuit Court of Australia”. In substance, however, Mr El-Hanania seeks an order that a previous order or previous orders made in this proceeding be corrected under the “slip rule” to include an order under s.41(6A) of the Bankruptcy Act 1966 (Cth) (Act) extending the time for compliance with the requirements of the bankruptcy notice that has been served on him.
In addition Mr El-Hanania submits the Court has power to extend the time for compliance with the requirements of the bankruptcy notice because he filed…

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.

Continue reading El-Hanania v Vella

Details

AGLC: El-Hanania v Vella [2019] FCCA 1555
Case: [2019] FCCA 1555
Decision Date: 9 July 2019

CaseChat Overview and Summary

In this matter before Judge Manousaridis, Mr El-Hanania sought to invoke the "slip rule" to correct orders previously made by the Court of Appeal. The underlying dispute concerned a judgment of $212,765.37 entered in the District Court of New South Wales. Mr El-Hanania had applied to the Court of Appeal for an extension of time to file a summons seeking to set aside this judgment on judicial review grounds, and also sought leave to appeal.

The primary legal issues before Judge Manousaridis were whether the "slip rule" was available to insert an order under section 41(6A) of the *Bankruptcy Act 1966* (Cth) extending time for compliance with a bankruptcy notice, and whether such an extension could be granted after the time for compliance, even as previously extended, had expired. The court also considered whether, in the exercise of its discretion, it should decline to make such an order or apply the slip rule.

Judge Manousaridis reasoned that Mr El-Hanania had not demonstrated an ability to satisfy the conditions imposed by the Court of Appeal for extending the time to seek judicial review of the judgment. These conditions included paying the judgment sum into court and providing security for costs by 31 July 2019. The judge inferred from Mr El-Hanania's silence on these matters that he would be unable to meet them, which weighed heavily against exercising discretion to extend time for compliance with the bankruptcy notice. The court noted that Mr El-Hanania criticised Mr Vella's opposition to the application for an extension of time.

The application was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is unnecessary that I set out the detail of the judgment on the basis of which the bankruptcy notice has been issued, other than to say that it is judgment for $212,765.37 that was entered in the District Court of New South Wales on 31 May 2018 (Judgment). On 3 July 2019 the Court of Appeal heard an application by Mr El-Hanania for an order extending the time to 1 April 2019 to file a summons seeking to set aside the Judgment on judicial review grounds. There was also before the Court of Appeal a summons for leave to appeal. The transcript of the oral submissions made to the Court of Appeal is annexed to Mr El-Hanania’s affidavit of 8 July 2019. At the conclusion of the hearing, the transcript records Court of Appeal made the following orders:In the judicial review proceedings 2019/101284 the orders of the Court are as follows:1.Subject to the conditions in para 2 below, extend the time for filing of the summons to 1 April 2019.2.Within 28 days of today the applicant is to:(a)pay into Court the sum of $212,765.37 to abide the further order of the Court.(b)provide security for costs in a for satisfactory to the registrar of the Court in an amount of $35,000.3.Otherwise dismiss the respondent’s amended notice of motion filed 15 April 2015.In the proceedings commenced by summons seeking leave to appeal filed in proceedings 2019/56754 the orders of the Court are:1.Summons dismissed.2.Costs of the summons to abide the outcome of the proceedings for judicial review 2019/101284.Back to the proceedings for judicial review, the additional orders are:4.Reasons reserved.5.Stand over the proceedings before the registrar for directions on Monday 5 August 2019 . . . . In his affidavit of 8 July 2019 Mr El-Hanania draws attention to a number of observations made by the judges of appeal during the hearing, the apparent intention being to show there are at the very least arguable grounds on which the Judgment is liable to be set aside. It is not appropriate for me to comment on the passages to which Mr El-Hanania refers because the Court of Appeal reserved its reasons for decision. What Mr El-Hanania does not say in his affidavit, however, is that he will be in a position to meet the terms on which the Court of Appeal granted him leave to extend the time for applying for judicial review of the Judgment, those terms being that he pay the amount of the Judgment into Court by 31 July 2019, and that he provide security for costs by that day in the amount of $35,000. Mr El-Hanania says nothing about whether he has any capacity to satisfy either or both of these conditions. The natural inference to draw from Mr El-Hanania’s silence about these conditions is that he will not be in a position to satisfy them. That weighs heavily against my exercising the discretion to extend the time for Mr El-Hanania complying with the requirements of the bankruptcy notice. As I have noted, Mr El-Hanania criticises Mr Vella’s opposing the application for an extension of time to comply with the requirements of the bankruptcy notice. There are a number of matters to note.

Ratio Decidendi

Legal Principle Established

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