Ezekiel-Hart v Reis - [2024] FedCFamC2G 121

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ezekiel-Hart v Reis [2024] FedCFamC2G 121

File number(s): CAG 25 of 2023

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 15 February 2024

Catchwords: BANKRUPTCY – Application to set aside bankruptcy notice – whether application to set aside bankruptcy notice was made before the time for complying with it had expired – application to set aside bankruptcy notice not made before the time for complying with it had expired – whether in any event the applicant would have succeeded on any of the grounds on which he relies for setting aside the bankruptcy notice – applicant would not have succeeded – application dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) ss 40(1)(g)(ii), 41(6A)

Federal Circuit Court of Australia Act 199 (Cth) s 88Q

Holidays Act 1958 (ACT) s 3(1)(a)(ix)

Legal Profession Act 1996 (ACT) ss 576(1), 576(2), 577(1)

Civil Procedure Rules 2006 (ACT) rr 1800(3), 1835(5), 1835(6)

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.01(1), 3.02

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.05, 2.09

Cases cited:
Derek George Shephard v Chiquita Brands South Pacific Limited [2004] FCAFC 76

Ezekiel-Hart v Reis [2018] ACTSC 264

Ezekiel-Hart v The Law Society of the ACT & Anor [2014] FCCA 658

Ezekiel-Hart v The Law Society of the ACT & Anor [2014] FCCA 658

Glew v Harrowell, in the matter of Glew [2003] FCA 373

Lamb v Sherman [2023] FCAFC 85

Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd [1980] FCA 78

Division: General

Number of paragraphs: 52

Date of hearing: 1 November 2023

Place: Sydney

Counsel for the Respondents: Ms P Bindon, by video

Solicitor for the Respondents: Thomson Geer

The Applicant: In person, by video
ORDERS

CAG 25 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF EMMANUEL TAM EZEKIEL-HART

BETWEEN:
EMMANUEL TAM EZEKIEL-HART

Applicant

AND:
ROBERT ANTHONY REIS

First Respondent

COUNCIL OF THE LAW SOCIETY OF THE ACT

Second Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

15 FEBRUARY 2024

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the respondents’ costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

By an application electronically lodged at 7:24 pm on 26 May 2023 with the Canberra Registry of this Court, but accepted for filing on 30 May 2023, Mr Ezekiel-Hart applies to set aside a bankruptcy notice (bankruptcy notice) issued on 3 May 2023 on the application of the Council of…

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: [2024] FedCFamC2G 121
Decision Date: 15 February 2024

CaseChat Overview and Summary

The case of Ezekiel-Hart v Reis involved the applicant, Mr Ezekiel-Hart, seeking to set aside a bankruptcy notice issued against him. The respondents, Reis, were the creditors who had issued the notice. The dispute was heard and determined in the Federal Circuit Court of Australia. The primary issue before the Court was whether the application to set aside the bankruptcy notice was made within the required timeframe and, if so, whether Mr Ezekiel-Hart could succeed on any of the grounds he intended to rely on for setting aside the notice.

The Court found that Mr Ezekiel-Hart had not made his application to set aside the bankruptcy notice within the prescribed period, rendering the Court without jurisdiction to entertain the application. Even if the application had been made within the required timeframe, the Court determined that Mr Ezekiel-Hart would not have succeeded on any of the grounds he intended to rely on, including the assertion that the respondents had lied. The Court found that these submissions did not warrant a departure from the usual outcome as to costs, which is that the unsuccessful party should pay the costs of the successful party.

In conclusion, the Court dismissed Mr Ezekiel-Hart’s application to set aside the bankruptcy notice. The Court also ordered Mr Ezekiel-Hart to pay the respondents’ costs, rejecting his submissions regarding costs and the assertion that the respondents had lied. The Court's decision was based on the jurisdictional constraints and the lack of merit in Mr Ezekiel-Hart's grounds for setting aside the bankruptcy notice.

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

The sixth ground on which Mr Ezekiel-Hart relies would also have failed if the Court had jurisdiction to determine whether to set aside the bankruptcy notice.CONCLUSION AND DISPOSITION The Court does not have jurisdiction to entertain Mr Ezekiel-Hart’s application to set aside the bankruptcy notice because he purported to apply to set aside the bankruptcy notice after the time by which he was required to comply with it had expired. Even if Mr Ezekiel-Hart did apply to set aside the bankruptcy notice before the time for compliance with the bankruptcy notice had expired, he would not have succeeded on any of the grounds on which he intended to rely. I therefore propose to order that the application be dismissed. As for costs, I asked Mr Ezekiel-Hart what submissions he would make about costs if he were to fail in his application to set aside the bankruptcy notice. Mr Ezekiel-Hart submitted I should not exercise my discretion to award costs. He relied on the assertion that the respondents had lied. Mr Ezekiel-Hart also relied on a submission that I do not understand. Mr Ezekiel-Hart said that “costs is not automatic”, and that the “High Court has also made a decision that even in betting who will win a case, because an order can still be made for me to pay the costs of the other party”.[17] [17] T44.45-T45.5 These are not matters that would cause me not to follow the usual outcome as to costs, namely, that the unsuccessful party should be ordered to pay the costs of the successful party. I will therefore also order that the Mr Ezekiel-Hart pay the respondent’s costs.

Ratio Decidendi

Legal Principle Established

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File number(s):	CAG 25 of 2023
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	15 February 2024
Catchwords:	BANKRUPTCY – Application to set aside bankruptcy notice – whether application to set aside bankruptcy notice was made before the time for complying with it had expired – application to set aside bankruptcy notice not made before the time for complying with it had expired – whether in any event the applicant would have succeeded on any of the grounds on which he relies for setting aside the bankruptcy notice – applicant would not have succeeded – application dismissed.
Legislation:	Bankruptcy Act 1966 (Cth) ss 40(1)(g)(ii), 41(6A) Federal Circuit Court of Australia Act 199 (Cth) s 88Q Holidays Act 1958 (ACT) s 3(1)(a)(ix) Legal Profession Act 1996 (ACT) ss 576(1), 576(2), 577(1) Civil Procedure Rules 2006 (ACT) rr 1800(3), 1835(5), 1835(6) Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) rr 2.01(1), 3.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 2.05, 2.09
Cases cited:	Derek George Shephard v Chiquita Brands South Pacific Limited [2004] FCAFC 76 Ezekiel-Hart v Reis [2018] ACTSC 264 Ezekiel-Hart v The Law Society of the ACT & Anor [2014] FCCA 658 Ezekiel-Hart v The Law Society of the ACT & Anor [2014] FCCA 658 Glew v Harrowell, in the matter of Glew [2003] FCA 373 Lamb v Sherman [2023] FCAFC 85 Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd [1980] FCA 78
Division:	General
Number of paragraphs:	52
Date of hearing:	1 November 2023
Place:	Sydney
Counsel for the Respondents:	Ms P Bindon, by video
Solicitor for the Respondents:	Thomson Geer
The Applicant:	In person, by video

CAG 25 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF EMMANUEL TAM EZEKIEL-HART
BETWEEN:	EMMANUEL TAM EZEKIEL-HART Applicant
AND:	ROBERT ANTHONY REIS First Respondent COUNCIL OF THE LAW SOCIETY OF THE ACT Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	15 FEBRUARY 2024