Fazio (Executor) v Passmore

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FEDERAL COURT OF AUSTRALIA

Fazio (Executor) v Passmore [2011] FCA 273

Citation: Fazio (Executor) v Passmore [2011] FCA 273
Parties: ARTURO FAZIO AS EXECUTOR OF THE ESTATE OF THE LATE SAMANTHA UNDERDOWN v VINCENSA PASSMORE
File number: WAD 287 of 2010
Judge: SIOPIS J
Date of judgment: 25 March 2011
Catchwords:

BANKRUPTCY – creditor’s petition for the administration of a deceased estate pursuant to s 244 of the Bankruptcy Act 1966 (Cth) – administration order made by District Registrar - application for an extension of time to seek review of the decision of the District Registrar under s 35A of the Federal Court of Australia Act 1976 (Cth) – whether the petition should be dismissed or adjourned for “other sufficient cause” pursuant to s 244(12) of the Bankruptcy Act 1966 (Cth) – whether an institution of an appeal against the judgment debt constitutes “other sufficient cause” – whether distress, grief and suffering comprise “other sufficient cause”.

PRACTICE AND PROCEDURE – personal representative of deceased entered an appearance to the  petition – personal representative disputed whether there had been personal service of the petition – whether O 7 r 1(3) of the Federal Court Rules to be construed as not having effect where process server trespasses in the course of serving originating process.  
Legislation: Federal Court of Australia Act 1976 (Cth) s 35A
Bankruptcy Act 1966 (Cth) Pt XI, ss 244, 244(1), (5), (6), (9), (11), (12), (13)
Federal Court Rules O 7 rr 1(1), 1(3)
Federal Court (Bankruptcy) Rules 2005 r 1.03(2)
Cases cited: Passmore v Underdown (Deceased) [2010] FCA 70
Plenty v Dillon (1991) 171 CLR 635
Date of hearing: 28 January 2011
Place: Perth
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 82
Counsel for the Applicant: The Applicant appeared in person.
Counsel for the Respondent: Ms K Levy
Solicitor for the Respondent: Kott Gunning

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 287 of 2010
BETWEEN:

ARTURO FAZIO AS EXECUTOR OF THE ESTATE OF THE LATE SAMANTHA UNDERDOWN
Applicant
AND:

VINCENSA PASSMORE
Respondent

JUDGE:

SIOPIS J

DATE OF ORDER:

25 MARCH 2011

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The name of the applicant to this proceeding is changed to:  Arturo Fazio as Executor of the Estate of the Late Samantha Underdown.

2.The time for the bringing by the applicant of the review application under s 35A of the Federal Court of Australia Act 1976 (Cth) in respect of the orders made by District Registrar Jan in WAD 4 of 2010, is extended to 30 September 2010.

3.The review application is dismissed.

4.The orders of District Registrar Jan made on 28 April 2010 in WAD 4 of 2010, are affirmed.

5.By 4:00 pm on 1 April 2011, each party is to file and serve written submissions on the costs of this application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the…

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Details
Case
[2011] FCA 273
Decision Date

CaseChat Overview and Summary

The case of Fazio (Executor) v Passmore involves a creditor's petition for the administration of a deceased estate under s 244 of the Bankruptcy Act 1966 (Cth). The petitioner, Mr Fazio, as the executor of Ms Underdown's estate, sought the administration of her estate following her death. The legal issues encompassed the sufficiency of the grounds for extending the time to seek review of the District Registrar's decision, the interpretation of "other sufficient cause" under s 244(12) of the Bankruptcy Act, and whether the distress, grief, and suffering of the personal representative constituted valid grounds for dismissing or adjourning the petition.

The court examined whether an appeal against a judgment debt could be considered "other sufficient cause" and whether the distress and suffering experienced by the personal representative warranted a dismissal or adjournment of the petition. It was also necessary to determine whether the process server's alleged trespass in serving the originating process affected the enforceability of O 7 r 1(3) of the Federal Court Rules.

The court found that the appeal against the judgment debt did not constitute "other sufficient cause" for dismissing the petition. Additionally, the distress, grief, and suffering experienced by the personal representative were deemed insufficient grounds to justify a dismissal or adjournment of the petition. Regarding the procedural issue, the court concluded that the alleged trespass by the process server did not negate the effect of O 7 r 1(3) of the Federal Court Rules. Consequently, the application for an extension of time to seek review was dismissed, and the orders made by the District Registrar were affirmed.

The final orders of the court were that Mr Fazio's name was changed to Arturo Fazio as Executor of the Estate of the Late Samantha Underdown, the time for bringing the review application was extended to 30 September 2010, the review application was dismissed, the orders of the District Registrar were affirmed, and each party was required to file and serve written submissions on the costs of the application by 4:00 pm on 1 April 2011.

Orders

Orders of the court

1. The name of the applicant to this proceeding is changed to: Arturo Fazio as Executor of the Estate of the Late Samantha Underdown.

2. The time for the bringing by the applicant of the review application under s 35A of the Federal Court of Australia Act 1976 (Cth) in respect of the orders made by District Registrar Jan in WAD 4 of 2010, is extended to 30 September 2010.

3. The review application is dismissed.

4. The orders of District Registrar Jan made on 28 April 2010 in WAD 4 of 2010, are affirmed.

5. By 4:00 pm on 1 April 2011, each party is to file and serve written submissions on the costs of this application.

Note:

Background

Background to the litigation

At the hearing, I entertained argument both as to the question of whether time should be extended and as to the review itself.BACKGROUND On 23 December 2005, Ms Underdown commenced a proceeding against Ms Passmore in the Magistrates Court of Western Australia. Ms Underdown claimed damages in relation to alleged losses arising from Ms Underdown having entered into a contract to purchase a residential property in Leeming from Ms Passmore. The trial of the proceeding took place over a number of days in October 2006 and November 2006. On 15 January 2007, Magistrate Pontifex published reasons and made an order dismissing Ms Underdown’s claim. I will deal in some detail with the proceeding later in these reasons. On 15 January 2007, the Magistrate also gave the parties liberty to apply to be heard on the question of costs in default of agreement. By a letter dated 18 January 2007, Ms Passmore’s solicitors wrote to Mr Fazio, on behalf of Ms Underdown, contending that their client had spent $51,613.42 in defending Ms Underdown’s claim and requiring payment of $51,613.42. I would add that Mr Fazio is named in the published reasons of the Magistrate, as the person who represented Ms Underdown in the proceeding in the Magistrates Court. On 19 January 2007, Mr Fazio responded to that letter and asked for an itemised account of the costs claimed by Ms Passmore. On 25 January 2007, Mr Fazio submitted for stamping a transfer of land form whereby Ms Underdown transferred to Mr Fazio an half interest as a joint tenant in the Leeming property. The transfer of land form states the consideration for the transfer of the half interest as “Love and Affection – Gift”. Prior to the transfer, the land was registered solely in the name of Ms Underdown. On 6 February 2007, Ms Underdown filed a notice of appeal in the District Court of Western Australia against the order of Magistrate Pontifex. The grounds of appeal were stated as follows:1.The appellant was not afforded a fair trial.2.The learned Magistrate failed to give proper consideration to the evidence and law pertaining to the question of duress and erred.3.The principles of law afforded the defendant were not similarly afforded the claimant.4.Reasonable apprehension of bias.5.The decision is harsh, oppressive and unfair in the circumstances.6.The learned Magistrate overlooked evidence and therefore gave such no weight. On 28 May 2007, Ms Passmore’s solicitors filed a chamber summons for dismissal of the appeal proceeding for want of prosecution in the District Court. On 12 June 2007, Deputy Registrar Harman of the District Court, ordered that Ms Underdown enter the appeal for hearing by no later than 29 June 2007. By letter dated 19 June 2007, Ms Passmore’s solicitors advised Mr Fazio on behalf of Ms Underdown, of the orders made by Deputy Registrar Harman and their available dates for hearing of the appeal. Ms Underdown did not enter the appeal for hearing by 29 June 2007. On 1 July 2007, Ms Underdown passed away. On 2 July 2007, Mr Fazio executed a survivorship application in favour of himself in respect of the Leeming property.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It, also, follows that I am satisfied of the matters referred to in s 244(11) of the Bankruptcy Act, with the consequence that the Court may make an order for the administration of the late Ms Underdown’s estate.SHOULD THE COURT WITHHOLD MAKING THE ADMINISTRATION ORDER Mr Fazio contended that, in any event, the fact that he had, in his capacity as Ms Underdown’s personal representative, appealed against the Magistrate Court’s order was a reason why the petition should be dismissed for “other sufficient cause”, pursuant to s 244(12) of the Bankruptcy Act. Alternatively, contended Mr Fazio, the petition should, on this ground, be adjourned sine die pending the determination of the appeal.THE MARCH 2010 APPEAL The grounds of appeal set out in the notice of appeal in the second appeal in the District Court of Western Australia are the following:1.The decision of Magistrate Pontifex amounts to a manifest miscarriage of justice.2.A reasonable minded person would deduce a reasonable apprehension of bias by Magistrate Pontifex towards the appellant.3.The learned Magistrate erred at law in allowing prejudicial cross examination that served no probative value.4.The learned Magistrate erred at law as to the issue of Duress. Mr Fazio filed in the District Court, an affidavit dated 12 March 2010 in support of an application seeking leave to appeal. In this affidavit, Mr Fazio said that at the trial of the proceeding in the Magistrates Court, he was an “integral witness” as to specific aspects of Ms Underdown’s claim but the Magistrate had rejected his evidence. Mr Fazio referred to the following observations by the Magistrate in respect of his evidence:The defendant submitted and I accept, that as Mr Fazio has a criminal conviction for an offence of dishonesty, namely fraud, that his evidence should consequently be afforded little if any weight. Mr Fazio said that it was true, that at the time of the trial before the Magistrate, he had been convicted of fraud. However, Mr Fazio went on to say that, subsequently, he appealed against that conviction to the Court of Criminal Appeal of Western Australia, and in 2008, that conviction was set aside by that Court. In his affidavit of 12 March 2010, Mr Fazio also identified the rejection of his evidence by Magistrate Pontifex, as the “gravamen of the appeal”. Before this Court, Mr Fazio also stated that since the appointment of a trustee in bankruptcy, he had lost the power to prosecute the appeal in the District Court, and the appeal had not progressed. Mr Fazio did not advance argument in support of the other grounds of appeal. However, Mr Fazio’s contention in relation to the Magistrate’s adverse treatment of his evidence because of his fraud conviction, is one of substance and calls for a close consideration of the decision of the Magistrate.THE MAGISTRATES COURT PROCEEDING The claim that was brought by Ms Underdown in the Magistrates Court arose out of an agreement entered into between Ms Underdown and Ms Passmore for the sale by Ms Passmore of a residential property in Leeming. The claim was for damages in the sum of $10,937.08 as well as aggravated and punitive damages.