Kimber v The Owners Strata Plan 48216 (No 2)

FEDERAL COURT OF AUSTRALIA

Kimber v The Owners Strata Plan 48216 (No 2) [2017] FCA 750

Appeal from:

Kimber v The Owners Strata Plan No. 48216 [2016] FCA 1090

File number:

NSD 1689 of 2016

Judge:

GLEESON J

Date of judgment:

9 June 2017

Date of publication of reasons:

4 July 2017

Catchwords:

PRACTICE AND PROCEDURE – application for an extension of time to file a notice of appeal – where draft notice substantially but not entirely in the form allowed by grant of leave to appeal – where there is no prejudice to the respondent by an extension of time – application granted with non-conforming portions of the draft notice of appeal excised

PRACTICE AND PROCEDURE – review of a decision of a Registrar to refuse to accept documents for filing – whether documents are an abuse of process – whether Court has power to make orders sought in the interlocutory application – application dismissed

Legislation:

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011

Date of hearing:

9 June 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:

16

Counsel for the Appellant:

The appellant appeared in person

Solicitor for the Respondent:

Ms S Meimanis of Grace Lawyers Pty Limited

ORDERS

NSD 1689 of 2016

BETWEEN:

JANELLE MARY KIMBER

Appellant

AND:

THE OWNERS STRATA PLAN NO 48216 (AGENTS/OFFICERS)

Respondent

JUDGE:	GLEESON J
DATE OF ORDER:	9 JUNE 2017

THE COURT ORDERS THAT:

1.Time is extended to 9 June 2017 to file the Notice of Appeal dated 26 April 2017, amended to delete the first five lines on page three.

2.The Notice of Appeal dated 26 April 2017 with the excisions set out in Order 1 shall be taken to be filed on 9 June 2017 and shall stand as the Notice of Appeal in the appeal.

3.The application to review the decision of Deputy District Registrar Cho made on 7 June 2017 is dismissed.

4.Each party is to bear its own costs in relation to the extension of time application.

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

REASONS FOR JUDGMENT

GLEESON J:

EXTENSION OF TIME TO APPEAL

1. On 9 June 2017, I extended the time for filing of the notice of appeal dated 26 April 2016, on terms that some words in the notice of appeal be excised. The excision was required to remove words that sought relief beyond the scope of the grant of leave to appeal in Kimber v The Owners Strata Plan No. 48216 [2017] FCA 364.

2. At the hearing on the application, the respondent opposed the grant of an extension of time on two bases. The first was that the grant of an extension of time would prejudice the respondent’s interests in having a creditor’s petition against Ms Kimber heard before April 2018, when the petition will expire. Second, the respondent submitted that the proposed appeal…