Kordatos v Sweeney - [2004] FCA 1487

FEDERAL COURT OF AUSTRALIA
Kordatos v Sweeney [2004] FCA 1487
PRACTICE AND PROCEDURE – appeals – application for extension of time in which to file notice of appeal – judicial discretion – grounds not made out
Bankruptcy Act 1966 (Cth)
Jess v Scott (1986) 12 FCR 187
Howard v Australian Electoral Commission [2000] FCA 1767
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9
McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547
House v The King (1936) 55 CLR 499
STEVE KORDATOS v PAUL SWEENEY
Q199 OF 2003
COOPER J
BRISBANE
17 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q199 OF 2003

BETWEEN:

STEVE KORDATOS
APPLICANT

AND:

PAUL SWEENEY
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

17 NOVEMBER 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the respondent’s costs, including any reserved costs, of and incidental to the application to be taxed if not agreed.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q199 OF 2003

BETWEEN:

STEVE KORDATOS
APPLICANT

AND:

PAUL SWEENEY
RESPONDENT

JUDGE:

COOPER J

DATE:

17 NOVEMBER 2004

PLACE:

BRISBANE

REASONS FOR JUDGMENT

This is an application for an extension of time in which to file and serve a notice of appeal.
BACKGROUND
The applicant became bankrupt on 15 July 1996. The respondent was the trustee of his bankrupt estate. On 11 October 1999 the bankruptcy was annulled by a resolution of creditors under s 74 of the Bankruptcy Act 1966 (Cth) (‘the Act’). On that date the respondent became, and thereafter acted, as trustee under a Deed of Composition between the applicant and his creditors. Under the composition the applicant was to pay to the respondent as trustee $80,000 to be administered in accordance with the terms of the composition.
The Deed of Composition dealt with the trustee’s remuneration and provided for remuneration to be paid for the administration of the bankrupt estate, the implementation of the composition and its administration at the hourly rate recommended by the Insolvency Practitioners Association of Australia. The Deed of Composition also provided that the trustee was entitled to pay expenses incurred from the composition fund. The creditors on 11 October 1999 resolved as a condition of acceptance of the applicant’s proposal that the trustee’s remuneration should be paid in the same proportion as dividend payments to the unsecured creditors. The trustee accepted such a limitation.
On 17 December 1999 the respondent by letter of that date, advised the applicant that the terms of the composition had been completed and provided to him a Trustee’s Account of Receipts and Payments which accounted for the receipt and disposition of the sum of $80,000 paid by the applicant to the trustee. On 17 January 2000 the respondent, in response to a request from the applicant, provided details of the two creditors to whom a dividend had been paid. These were Conroy and Associates (the petitioning creditor’s debt $25,530; dividend $19,402.80) and the…

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 Kordatos v Sweeney

Details

AGLC: Kordatos v Sweeney [2004] FCA 1487
Case: [2004] FCA 1487
Decision Date: 17 NOVEMBER 2004

CaseChat Overview and Summary

Kordatos applied for an extension of time to file and serve a notice of appeal in relation to a dispute with Sweeney, the trustee of his bankrupt estate. Sweeney had administered a Deed of Composition between Kordatos and his creditors, and Kordatos sought a review of the trustee's refusal to provide him with a bill for taxation of the $80,000 paid to the trustee. The applicant alleged that the trustee had failed to provide a bill in a taxable form for the $80,000 received from his estate and sought an order under section 178 of the Bankruptcy Act 1966 (Cth) to compel the trustee to provide such a bill. The central legal issue before the court was whether the applicant's application for an extension of time to file and serve a notice of appeal was valid and should be granted. The court found that the application was dismissed as the applicant had failed to provide a valid reason for the delay in filing the notice of appeal. The court held that the Bankruptcy Regulations provided a strict 14-day period within which a demand for taxation of the trustee's remuneration could be made, and the applicant had failed to make such a demand within the specified period. The court also noted that the applicant was self-represented and had not provided any compelling reason for the delay in filing the notice of appeal. Therefore, the application was dismissed, and the applicant was ordered to pay the respondent's costs, including any reserved costs, of and incidental to the application to be taxed if not agreed.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs, including any reserved costs, of and incidental to the application to be taxed if not agreed.

Background

Background to the litigation

This is an application for an extension of time in which to file and serve a notice of appeal. BACKGROUND The applicant became bankrupt on 15 July 1996. The respondent was the trustee of his bankrupt estate. On 11 October 1999 the bankruptcy was annulled by a resolution of creditors under s 74 of the Bankruptcy Act 1966 (Cth) (‘the Act’). On that date the respondent became, and thereafter acted, as trustee under a Deed of Composition between the applicant and his creditors. Under the composition the applicant was to pay to the respondent as trustee $80,000 to be administered in accordance with the terms of the composition. The Deed of Composition dealt with the trustee’s remuneration and provided for remuneration to be paid for the administration of the bankrupt estate, the implementation of the composition and its administration at the hourly rate recommended by the Insolvency Practitioners Association of Australia. The Deed of Composition also provided that the trustee was entitled to pay expenses incurred from the composition fund. The creditors on 11 October 1999 resolved as a condition of acceptance of the applicant’s proposal that the trustee’s remuneration should be paid in the same proportion as dividend payments to the unsecured creditors. The trustee accepted such a limitation. On 17 December 1999 the respondent by letter of that date, advised the applicant that the terms of the composition had been completed and provided to him a Trustee’s Account of Receipts and Payments which accounted for the receipt and disposition of the sum of $80,000 paid by the applicant to the trustee. On 17 January 2000 the respondent, in response to a request from the applicant, provided details of the two creditors to whom a dividend had been paid. These were Conroy and Associates (the petitioning creditor’s debt $25,530; dividend $19,402.80) and the Australian Taxation Office (debt $2,155; dividend $1,637.80). The letter advised that the balance of the sum of $80,000 was paid as to $7,216 for the taxed costs of the petitioning creditor with the remainder being applied to the trustee’s costs, outlays and remuneration. On 13 July 2001 the applicant gave to the respondent a notice requiring taxation of the trustee’s remuneration. The respondent refused to do so on the basis that the period of 14 days within which such a demand could be made had expired: see reg 8.09 of the Bankruptcy Regulations. On 4 January 2002 the applicant filed in the Federal Magistrates Court an application against the respondent which sought the following orders: ‘I am seeking a Court Order to review the decision of the Trustee who refuses to provide me with bills in a taxable form for the $80,000.00 he received from my estate. Being privy to this matter, I believe the Court can assist me by invoking Section 178 of the Bankruptcy Act 1966 (s 33 may also be relevant) and thus order the Trustee to submit a bill for taxation.’ The applicant was self represented in the Federal Magistrates Court. On 16 October 2003 the application was dismissed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

COOPER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q199 OF 2003

BETWEEN:	STEVE KORDATOS APPLICANT
AND:	PAUL SWEENEY RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	17 NOVEMBER 2004
WHERE MADE:	BRISBANE

JUDGE:	COOPER J
DATE:	17 NOVEMBER 2004
PLACE:	BRISBANE