Hacker v Weston - [2015] FCA 790

FEDERAL COURT OF AUSTRALIA
Hacker v Weston [2015] FCA 790

Citation: Hacker v Weston [2015] FCA 790

Appeal from: Application for extension of time: Hacker v Weston (No 2) [2015] FCA 521

Parties: SUSANNE HACKER AKA SUSANNAH HACKER, SUSIE HACKER, SUSIE SHOSHAMMA GISELA & SUSANNAH SHOSHANNA GISELLA HACKER v PAUL GERARD WESTON

File numbers: NSD 817 of 2015
NSD 819 of 2015

Judge: ALLSOP CJ

Date of judgment: 3 August 2015

Legislation: District Court Act 1973 (NSW), s 127(2)(b)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Supreme Court Act 1970 (NSW), s 101(2)(c)

Cases cited: Hacker v Weston [2015] FCA 363
Hacker v Weston (No 2) [2015] FCA 521

Date of hearing: 3 August 2015

Date of order 4 August 2015

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 12

Counsel for the Applicant: Mr M Sneddon

Solicitor for the Applicant: Carrolls Lawyers

Counsel for the Respondent: Mr J Baird

Solicitor for the Respondent: Goldrick Farrell Mullan Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 817 of 2015
NSD 819 of 2015

BETWEEN:
SUSANNE HACKER AKA SUSANNAH HACKER, SUSIE HACKER, SUSIE SHOSHAMMA GISELA & SUSANNAH SHOSHANNA GISELLA HACKER
Applicant

AND:
PAUL GERARD WESTON
Respondent

JUDGE:

ALLSOP CJ

DATE OF ORDER:

4 AUGUST 2015

WHERE MADE:

SYDNEY

THE COURT:
1.Orders that the time be extended until 4 pm on 4 August 2015 for the filing and serving of an application for leave to appeal and a notice of appeal from the orders of the Court made on 27 May 2015.
2.Orders that the application for leave to appeal to be heard by a Full Court at the time of hearing the appeal either before or concurrently with the argument on appeal.
3.Orders that the applicant to pay the respondent’s costs of the extension of time application in the sum of $8,800 (inclusive of GST), as agreed between the parties.
4.Directs that the applicant in consultation with the respondent, prepare, file and serve appeal books in accordance with the Rules, by 4 pm on Monday, 17 August 2015.
5.Directs that the applicant file and serve her written submissions in chief by 4 pm on Monday, 24 August 2015.
6.Directs that the respondent file and serve his written submissions in response by 4 pm on Monday, 14 September 2015.
7.Directs that the applicant file and serve any written submissions in reply by 4 pm on Monday, 28 September 2015.
8.Directs that the parties have liberty to approach jointly the National Appeals Registrar to obtain a hearing date, if possible in the November 2015 sittings, otherwise in December 2015, with an estimate of half a day to one day.
9.Notes the undertaking to the Court of the applicant by her solicitor that she will cause the sum of $38,298.32 to be retained in the trust account of her solicitors, Carrolls Lawyers, pending the determination of the above application for leave and appeal and/or the further order of the Court.

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 Hacker v Weston

Details

AGLC: Hacker v Weston [2015] FCA 790
Case: [2015] FCA 790
Decision Date: 3 August 2015

CaseChat Overview and Summary

This case involves an application for an extension of time for the filing and serving of a notice of appeal from orders made on 27 May 2015 in Hacker v Weston (No 2) [2015] FCA 521. The orders were related to the finalisation of proceedings, with a focus on costs. The applicant, Ms Hacker, seeks an extension due to a misunderstanding by her solicitor regarding the time limits for filing a notice of appeal. The court must determine whether Ms Hacker has an entitlement to appeal the orders as part of the final orders of the court or if she requires leave to appeal due to the nature of the costs orders.

The legal issues before the court include whether Ms Hacker needs leave to appeal the costs orders and whether the costs orders are interlocutory in nature. The court considers relevant legislation and previous decisions, noting that costs orders in interlocutory matters may differ from those made as part of the final disposition of proceedings. The court acknowledges the possibility that leave may be required but decides not to delay the disposition of the matter on this issue. The main concern is the conduct of the respondent, the trustee in bankruptcy, and whether any prejudice has resulted from the misunderstanding by Ms Hacker's solicitor.

The court decides to grant an extension of time for Ms Hacker to file and serve either, or both, an application for leave to appeal and a notice of appeal. The court does so with some reservation, expressing disappointment in the solicitor's misunderstanding of the Federal Court Rules. The court also orders that the application for leave to appeal be referred to a Full Court for consideration, as the merits of the matter are not to be commented on at this stage. The court directs the preparation of appeal books and written submissions, and sets out a timetable for the appeal process. The court further orders that Ms Hacker pay the respondent's costs for the extension of time application and that a sum of money be retained in the trust account of her solicitors pending the outcome of the appeal.

In summary, the court grants an extension of time for Ms Hacker to file and serve an application for leave to appeal and a notice of appeal. The application for leave to appeal will be heard by a Full Court. The court directs the parties to prepare appeal books and written submissions and sets a timetable for the appeal process. The court orders that Ms Hacker pay the respondent's costs for the extension of time application and that a sum of money be retained in the trust account of her solicitors pending the outcome of the appeal.

Orders