El-Hanania v Vella

[2020] FCA 147

FEDERAL COURT OF AUSTRALIA

El-Hanania v Vella [2020] FCA 147

Appeal from:

Application for extension of time and leave to appeal: El-Hanania v Vella [2019] FCCA 1555

File number:

NSD 1204 of 2019

Judge:

MARKOVIC J

Date of judgment:

14 February 2020

Catchwords:

PRACTICE AND PROCEDURE – application for extension of time and leave to appeal – where there was no utility in the application – application dismissed  

Legislation:

Bankruptcy Act 1966 (Cth) ss 40(1)(g), 40(3)(b), 41(6A)

Federal Court Rules2011 (Cth) r 35.14

Date of hearing:

14 February 2020

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

7

Counsel for the Applicant:

The Applicant did not appear

Solicitor for the Applicant:

Saba El-Hanania Lawyers

Solicitor for the Respondent:

Mr T Wallace of Sewell & Kettle Lawyers

ORDERS

NSD 1204 of 2019

BETWEEN:

MR SABA EL-HANANIA

Applicant

AND:

MR ALON JOSEPH VELLA

Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	14 FEBRUARY 2020

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal filed on 31 July 2019 be dismissed.

2.The applicant pay the respondent’s costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

1. This is an application under r 35.14 of the Federal Court Rules 2011 (Cth) for an extension of time and leave to appeal that was filed on 31 July 2019 (Application).  The Application relates to orders made in the Federal Circuit Court of Australia (Federal Circuit Court) on 9 July 2019 that an interim application filed by the applicant on 10 April 2019 is dismissed.  The interim application referred to in that order in turn sought an order that the time for complying with the requirements of a bankruptcy notice served on the applicant, Saba El-Hanania, by the respondent, Alon Joseph Vella (Bankruptcy Notice), be extended. As explained by the primary judge in his Honour’s reasons for judgment, Mr El-Hanania, in substance, sought an order that a previous order or previous orders made in the 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: see El-Hanania v Vella [2019] FCCA 1555.

2. The Application was listed for hearing before me today, initially at 10.15 am.  That listing was changed to 11.00 am because of intervening events.  Attempts were made to inform Mr El-Hanania of the change in time for today’s hearing, both by dispatch of email by the Court which was returned as undelivered, and by sending a copy of the email correspondence from the Court about the change in time of today’s listing by post to the applicant’s address for service. 

3. In any event, events that have transpired before the Federal Circuit Court have overtaken the utility of the Application.  Those events are as follows: 

   (1)Mr El-Hanania had filed in the Federal Circuit Court an application to set aside the Bankruptcy Notice.  That application came before the Federal Circuit Court for hearing on 1 November 2019;

   (2)on 15 November 2019 the Federal Circuit Court delivered judgment and made a declaration that the judgment entered in the District Court of New South Wales on 31 May 2018 (Judgment) in relation to which the Bankruptcy Notice (No BN226177) was issued on 26 July 2018 is not a “final judgment or final order” within the meaning of s 40(1)(g) of the Act, and cannot be deemed to be a “final judgment” under s 40(3)(b) of that Act and, for those reasons, the Bankruptcy Notice is liable to be set aside;

   (3)on 15 November 2019 the Federal Circuit Court also made an order for the applicant and respondent each to file and serve written submissions in relation to a further question for the court’s determination as follows: 

   (2)By 6 December 2019 the applicant and respondent may both file and serve on each other written submissions in relation to the following questions:

   (a)Does the Federal Circuit Court of Australia (Court) have jurisdiction to determine in the proceeding constituted by the application to set aside the Bankruptcy Notice whether the $212,765.37 for which the Judgment was given, apart from the Judgment nevertheless represents a debt within the meaning of s.368(4) of the Legal Profession Act 2004 (NSW) (LP Act) and, if it so determines, give judgment in the amount of the debt?

   (b)Assuming (a) is answered the affirmative, does the $212,765.37 for which the Judgment was given, apart from the Judgment nevertheless represent a debt for the purposes of s.368(4) of the LP Act and, if so, is it open to the Court to direct the entry of judgment in the amount of the debt, together with interest?

   …

   (Original emphasis.)

   (4)the proceeding was listed before the Federal Circuit Court for hearing on 6 February 2020 for determination of the outstanding question.  While there had been an appearance on behalf of Mr El-Hanania at the hearing on 1 November 2019, there was no appearance on behalf of Mr El-Hanania at the hearing on 6 February 2020; and

   (5)on 14 February 2020 the Federal Circuit Court delivered a further judgment and made orders including, relevantly, an order that the Bankruptcy Notice be set aside. 

4. Given that the Bankruptcy Notice has been set aside, the Application has no utility.  That is because at issue in the Application and ultimately, should leave to appeal be granted, in the appeal, is the question of whether the time for compliance with the requirements of the Bankruptcy Notice should be extended.  As the Bankruptcy Notice has been set aside by the Federal Circuit Court, there can be no utility in pursuing such an appeal. 

5. There has been no appearance by or on behalf of Mr El-Hanania this morning.  I am satisfied that there were attempts to contact Mr El-Hanania, although there has been no communication by him or on his behalf with the Court or, as I understand it, with the solicitor for Mr Vella.  I was informed from the bar table that when judgment was delivered by the Federal Circuit Court this morning there was no appearance by or on behalf of Mr El-Hanania in that court. 

6. Mr Vella seeks an order that the application for an extension of time and leave to appeal be dismissed with costs.  Given that there is no utility in that application, it should be dismissed.  I am also satisfied that I should accede to the application for costs.  At the very least had Mr El-Hanania attempted to keep in contact with Mr Vella’s solicitor and responded to the correspondence on behalf of the Court, this morning’s appearance could have been avoided given the outcome before the Federal Circuit Court. 

7. Accordingly, I will make the orders sought by Mr Vella.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:       18 February 2020