Ghosh v Miller (No 3)

[2017] FCA 1617

FEDERAL COURT OF AUSTRALIA

Ghosh v Miller (No 3) [2017] FCA 1617

File number:

NSD 1735 of 2016

Judge:

PERRAM  J

Date of judgment:

22 December 2017

Catchwords:

PRACTICE AND PROCEDURE – application for stay pending outcome of special leave application in High Court of Australia

Cases cited:

Ghosh v Miller [2016] FCA 1293

Ghosh v Miller (No 2) [2017] FCA 890

Minister forLocal Government v South Sydney City Council (No 3) [2002] NSWCA 327

Date of hearing:

22 December 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

Mr C Carter

Solicitor for the Applicant:

Vaikom Rajeev – Criminal and Commercial Lawyers

Counsel for the Respondent:

Mr M Maconachie

Solicitor for the Respondent:

Higgins & Dix

ORDERS

NSD 1735 of 2016

BETWEEN:

RATNA GHOSH

Applicant

AND:

RODNEY MILLER

Respondent

JUDGE:	PERRAM  J
DATE OF ORDER:	22 DECEMBER 2017

THE COURT ORDERS THAT:

1.The Interlocutory Application filed on 20 December 2017 be dismissed.

2.The Applicant pay the Respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

1. This is an application for a stay of proceedings under a sequestration order which was made by Judge Manousaridis in the Federal Circuit Court on 30 September 2016.

2. The Applicant has subsequently brought an appeal to this Court.  Some form of stay was granted by Markovic J in this Court pending the hearing of the appeal: Ghosh v Miller [2016] FCA 1293. The appeal was eventually heard by Farrell J who, on 8 August 2017, dismissed it: Ghosh v Miller (No 2) [2017] FCA 890. The form of stay which had been granted by Markovic J expired upon the determination of the proceedings. The chronology of events is as follows.

3. After judgment was given by Farrell J on 8 August 2017, the trustee in bankruptcy placed a caveat on some of the bankrupt’s property on 14 August 2017, and in early September, it appears the bankrupt became aware of this.  Attempts to achieve a consensual continuation of the stay seem to have petered out by about 5 October 2017 when the trustee refused to agree to it.  On 21 November 2017, the trustee began to take steps to assert an entitlement to receive rents from at least one of the properties.  In response to that, it appears that the bankrupt sought legal advice on 21 November 2017, and on 27 November 2017, it appears that she applied for a stay; however, the documents were not in the proper form and the registry refused to accept them, expressing the opinion that they were an abuse of process.  A similar thing occurred on 4 December 2017, and those papers were rejected on 7 December 2017.

4. Since the order which was sought in those two documents was an order staying Farrell J’s order dismissing the…