Larkfield Industrial Estates Pty Ltd v Guss - [2024] FedCFamC2G 465

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Larkfield Industrial Estates Pty Ltd v Guss [2024] FedCFamC2G 465

File number(s): MLG 591 of 2023

Judgment of: JUDGE J YOUNG

Date of judgment: 23 May 2024

Catchwords: BANKRUPTCY – application for review of a registrar’s decision – decision of judicial registrar to sequester the estate of the respondent debtor – extensive litigation history – consideration of application for discovery of documents – consideration of oral application for adjournment – application for review dismissed.

Legislation:
Bankruptcy Act 1966 (Cth) pt IV div 1, ss 33(1)(a), 40(1)(g), 41(1)(a)(i)-(ii), 41(3), 41(5), 41(6A), 41(6C), 41(7), 43, 44(1), 47, 52.

Federal Court of Australia Act1976 (Cth) s 24(1A).

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5(a), 175(3), 176(2), 190, 256.

Federal Circuit Court of Australia Act 1999 (Cth) s 45(1).

Federal Magistrates Act1999 (Cth)

Federal Court (Bankruptcy Rules) 2016 pt 4.

Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 rr 4.04, 4.05, 4.06,

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.04(2)(a), 13.06(1)(e), div 14.2 r 14.02, r 21.04

Cases cited:
Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14

Bechara v Bates [2021] FCAFC 34

Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442

GE Commercial Australia Pty Ltd v Tinkler [2016] FCA 55

Guss v Larkfield [2024] HCASL 30

Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105

Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235

Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116

Kakavas v Precise Interpreters Ltd [2010] FCA 915; 8 ABC(NS) 363

Quall v Northern Territory of Australia [2009] FCA 18

Re Pollard: Ex parte Lensing Management Co Pty Ltd [1991] FCA 823

Re Riordan; Ex parte Riordan v Direct Acceptance Corp Ltd (1995) 63 FCR 147

Re: Roland Bleyer Ex Parte: TCN Channel 9 Pty Limited [1993] FCA 117

Rotstein & Associates v Slaveski [2010] FCA 493

Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd [2018] VCC 584

Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd (No 2) [2018] VCC 628

Streimer v Tamas [1981] FCA 140; (1981) 37 ALR 211; 54 FLR 253

Vanden Driesden v Edith Cowan University [2012] FMCA 735

Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091

Zetta Jet Pte. Ltd v The Ship “Dragon Pearl” [2018] FCA 878

Division: Division 2 General Federal Law

Number of paragraphs: 165

Date of hearing: 27 March 2024

Place: Melbourne

Counsel for the Applicant: Mr McKillop

Solicitor for the Applicant: HWL Ebsworth Lawyers

Counsel for the Respondent: Self-represented litigant

ORDERS

MLG 591 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

IN THE MATTER OF JOSEPH GUSS, BANKRUPT

BETWEEN:
LARKFIELD INDUSTRIAL ESTATES PTY LTD

Applicant

AND:
JOSEPH GUSS

Respondent

ORDER MADE BY:

JUDGE J YOUNG

DATE OF ORDER:

23 MAY 2024

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed on 10 November 2023 is dismissed;
2.The Application for Review of the Registrar’s Decision filed on 6 October 2023 is dismissed; and
3.The Respondent Debtor pay the Applicant Creditor’s costs of the Application to be taxed in default of agreement pursuant to the Federal Court Rules 2011.

AND THE COURT NOTES THAT:
A.The costs pursuant to Order 3 above are in addition to the costs ordered pursuant to Order 3 of the Orders made 28 September 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
INTRODUCTION

Before the Court are two Applications by the respondent debtor (Mr Guss).
The first Application is an Application under s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) seeking review of a decision of a Judicial Registrar of this Court made on 28 September 2023 (Review Application), which sequestered the estate of Mr Guss under s 52 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and dismissed an Application in a Proceeding of Mr Guss relating to an extension of time and stay or adjournment of proceedings.
The second Application is an Application in a Proceeding (Discovery Application) seeking orders for discovery of certain documents. Mr Guss asserts the documents are material to the Review Application.
This decision is structured as follows:
·Part A – Background
·Part B – Discovery Application
·Part C – Adjournment Application
·Part D – Review Application
·Part E – Disposition
PART A – BACKGROUND
A bankruptcy notice, BN 256 470, (Bankruptcy Notice) was issued by the Official Receiver on 26 July 2022. The Bankruptcy Notice demands payment in the amount of $236,934.15 pursuant to a County Court of Victoria proceeding and a number of associated proceedings in the County Court, Supreme Court and Court of Appeal of Victoria, in respect of which Mr Guss is personally liable or jointly and severally liable with other parties.
There is a significant factual history to the matter, which has involved considerable litigation in multiple courts.
Background to the debt
The applicant creditor, Larkfield Industrial Estates Pty Ltd (Larkfield), operates a commercial storage business. Mr Guss arranged for Larkfield to store goods. After a period of time, the storage charges for the furniture were unpaid and remained due. Larkfield then refused to release the furniture until the outstanding storage charges were paid.
Scandi International Pty Ltd and Casualife Furniture International Ltd (collectively, Corporate Plaintiffs) claimed to be the owners of the goods in storage and initiated proceedings in the County Court of Victoria to retake possession of the stored goods. Larkfield filed a counterclaim seeking orders for the sale of the stored goods to recover the unpaid charges. Mr Guss was joined as a third defendant to the counter-claim in August 2016. A fourth defendant, LHV Pty Ltd, was also joined to the counter-claim.
The substantive judgment, Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd [2018] VCC 584, dismissed the Corporate Plaintiffs’ application and upheld Larkfield’s counterclaim, ordering judgment against the Corporate Plaintiffs, the fourth defendant and Mr Guss.
A costs judgment, Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd (No 2) [2018] VCC 628 was also made, with orders being made for the Corporate Plaintiffs, the fourth defendant and Mr Guss to pay the costs of the proceeding, including the counterclaim, and all reserved costs (Costs Orders). The costs liability of Mr Guss was limited to Larkfield’s costs incurred after 29 August 2016.
The defendants to the counter claim, including Mr Guss, sought to appeal those decisions in the Court of Appeal of Victoria. Leave to appeal was refused on 14 November 2018.
On 16 June 2021, a Registrar in the Costs Court (a division of the Supreme Court of Victoria) taxed the bill of costs pursuant to the costs judgment and made two separate costs orders (S ECI 2020 03561 and S ECI 2020 03558).
Pursuant to the Costs Orders Larkfield sold the goods left in its possession, realising $33,010.83.
Proceedings following the Bankruptcy Notice
As set out above, the Bankruptcy Notice was issued on 26 July 2022.
On 12 August 2022, Mr Guss filed an Application in this Court to set aside the Bankruptcy Notice. Orders were made by a Registrar on 21 February 2023 dismissing the Application and ordering Mr Guss to pay Larkfield’s costs in a lump sum figure to be determined if not agreed (Registrar’s BN Decision). A further order was made extending the time for compliance with the Bankruptcy Notice until 15 March 2023. On 15 May 2023, costs orders were made pursuant to the orders of 21 February 2023.
On 9 March 2023, Mr Guss filed an Application for Review of the Registrar’s BN Decision. Orders were made on 5 April 2023 dismissing the Application for Review of the Registrar’s BN Decision. Further orders were also made extending the time for compliance with the Bankruptcy Notice until 5 April 2023, and for Mr Guss to pay Larkfield’s costs in the Application for review: Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235 (FCFCOA Decision).
On 13 April 2023, Mr Guss filed a Notice of Appeal against the FCFCOA Decision. The Appeal was dismissed by the Federal Court of Australia and orders were made on 15 September 2023 for Mr Guss to pay Larkfield’s costs: Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105 (Federal Court Decision).
On 13 October 2023 Mr Guss filed an application in the High Court of Australia for special leave to appeal the Federal Court Decision (Special Leave Application).
On 7 March 2024, the High Court of Australia refused the Special Leave Application: Guss v Larkfield [2024] HCASL 30.
Current proceedings
Following the FCFCOA Decision, Larkfield filed a creditor’s petition on 6 April 2023 (Petition). Orders were made on 8 August 2023 allowing for substituted service on Mr Guss (8 August Orders).
Mr Guss filed an Application in a Proceeding on 27 September 2023 seeking, amongst other orders, that:
·the time for compliance with the Bankruptcy Notice be extended to a date after the determination of the Special Leave Application;
·the Petition be stayed or adjourned until the hearing and determination of the Special Leave Application.
Mr Guss also filed a Notice opposing the Petition on the basis that:
·if the extension of time for compliance with the Bankruptcy Notice is granted the Petition must be dismissed or alternatively, the Petition be stayed or adjourned until the hearing and determination of the Special Leave Application;
·the Petition claims an overstated amount; and
·the issue of the Petition is an abuse of process.
As noted above, orders were made on 28 September 2023 dismissing the Application in a Proceeding and sequestering the estate of Mr Guss.
The Review Application was filed on 6 October 2023 and originally listed for hearing on 16 October 2023. At that hearing, Mr Guss sought to cross-examine Mr Ades, the Chief Executive Officer of Larkfield, who filed an affidavit of debt on 13 October 2023. Mr Guss also raised his intention to file an Application in a Proceeding with respect to discovery of documents. Mr Ades was not available on the day of hearing for cross-examination, and as such the matter was adjourned to Monday, 20 November 2023. The Discovery Application was filed on 10 November 2023.
In the afternoon of Friday 17 November 2023, chambers received email communication from an unnamed person from the “office” of Mr Guss, requesting an adjournment of the hearing due to Mr Guss being unwell and attaching a copy of a medical certificate of the same date. An adjournment was not granted in chambers and the matter remained listed. Mr Guss did not attend the hearing on 20 November 2023. At that hearing, orders were made for Mr Guss to file evidence relating to his medical condition and the proceedings were adjourned for a short period. Following Mr Guss filing an affidavit of his medical practitioner, a further adjournment for a period of two weeks was granted and the proceedings were listed for hearing on 8 December 2023.
At 7.17pm on 7 December 2023, chambers received further email communication from an unnamed person from the “office” of Mr Guss. That email stated Mr Guss had been admitted to hospital that afternoon and that “accordingly tomorrows hearing will have to be adjourned to a date to be fixed after Mr Guss is again well enough , which we don’t know when this will be”. A letter from Mr Guss’ treating cardiologist was attached, stating Mr Guss had been admitted to Epworth Hospital “for further management of an acute cardiac condition” and that Mr Guss “will not be able to participate in his scheduled duties for the foreseeable future”. The solicitor for Larkfield in reply email indicated they did not consent to an adjournment of the hearing. Chambers sent an email to both parties in the morning of 8 December 2023 confirming that the matter remained listed at 10.00am.
At the hearing on 8 December 2023, orders were made adjourning the matter for further final hearing on 27 March 2024. Orders were also made for Mr Guss to file and serve any further submissions and evidence with respect to both Applications by 13 February 2024 and for Larkfield to file any further submissions and evidence with respect to both Applications by 27 February 2024. Further orders were made for Mr Guss to notify the Court by 13 March 2024 of his capacity to appear at the hearing on 27 March 2024. Notations were made that it is intended for both Applications to be heard at the hearing on 27 March 2024, and that if no attendance was made by or on behalf of Mr Guss, the hearing may proceed in his absence pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).
On 13 March 2024 Mr Guss confirmed his capacity to appear at the hearing on 27 March 2024.
Conduct of the hearing
The parties were advised by chambers prior to the hearing that the Discovery Application would be heard and determined first. If discovery was ordered, the Review Application would be listed for a later date to allow discovery to occur. If discovery was refused, the Review Application would be heard following that decision.
At the hearing on 27 March 2024, I dismissed the Discovery Application. I informed the parties that I would provide my reasons for that decision at the same time as I delivered my reasons for judgment in the Review Application.
Following dismissal of the Discovery Application Mr Guss made an oral application to adjourn the hearing of the Review Application. I dismissed that application and informed the parties that I would also provide my reasons for that decision at the same time as I delivered my reasons for judgment in the Review Application.
PART B - DISCOVERY APPLICATION
The Discovery Application was filed on 10 November 2023 and accompanied by an affidavit of Mr Guss.
The Discovery Application is set out as follows (without amendment):
1. Discovery from the applicant of the matters set out below.
2.Documents setting out the details of the sale or disposal permitted by the orders 15.2(a) and (c) of the Orders of Judge Anderson made 9 May 2018 (the said ordre) in County Court of Victoria proceeding CI-16-02981 (the County Court proceeding) including without limiting the generality thereof, the advertising thereof, the dates of sale, the reserve prices ( if any) of the goods offered for sale, the individual prices obtained for the goods sold, the expenses incurred including auctioneers and other charges,
3.Documents setting out the itemised costs of conductiing the the above sales and details of calculation of the net proceeds
4.Documents setting out details of the application of the proceeds of sale pursuant to Order 15.2(d) of the said order.
5.The applicants or its legal representatives documets and ercords of the taxation of costs of the taxation of costs by Judicial Registrar Gourlay in Supreme Court of Victoria, proceehding S ECI 2020 03562 dated 16 June 2021
6.Copies of the applicants or its solicitors records and docummets concerning the submission to and /or application to issue of Bankruotcy Notice BN 256470 dated 26 July 2022 and any corresponnce between the Official Rceivers Office in respect thereto and and diary notes of any discussions with the Offial Receivers Office in respect thereto.
The affidavit in support of the Discovery Application relevantly states the following:
…
3.The matters set out [in the Discovery Application] have been raised by me in the hearing of the proceeding the subject of the de novo review thereof and foreshadowed to be raised in the de novo application for review listed for hearing herein on 20 November 2023 herein.
4.The documents sought from the applicant detailsed in [the Discovery Application] are material evidence in my said de novo application for review and I respectfully request that my application be granted,
Larkfield filed written submissions opposing the Discovery Application on 17 November 2023 pursuant to orders made on 16 November 2023.
Further submissions were filed by Mr Guss on 14 February 2024, and by Larkfield on 28 February 2024.
At the hearing on 27 March 2024, I dismissed the Discovery Application. My reasons for that decision are as follows.
Legal principles with respect to discovery
In determining the Discovery Application, the Court must have regard to the objects of its governing legislation. The FCFCOA Act provides, relevantly, that its object is to “ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a) FCFCOA Act. Those objects must be read in conjunction with the overarching purpose of the civil practice and procedure provisions. Section 190(1) of the FCFCOA Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
Section 176(2) of the FCFCOA Act prohibits discovery in general federal law proceedings unless the Court declares that “it is appropriate, in the interests of the administration of justice, to allow…discovery”.
Section 175(3) of the FCFCOA Act further provides that in deciding whether to make a declaration pursuant to s 176(2), the Court must have regard to:
(a)whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b)such other matters (if any) as the Court or the Judge considers relevant.
Division 14.2 of the Rules deals with the obligation to disclose and, relevantly, provide as follows:
14.02 Declaration to allow discovery
(1)A declaration may be made under subsection 176(2) of the Act to allow discovery on the application of a party or on the Court’s own initiative.
Note: Discovery is not allowed in relation to a general federal law proceeding unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice (see subsections 176(2) and (3) of the Act).
(2)If a declaration is made, the Court or a Registrar may make an order for disclosure:
(a) generally; or
(b)in relation to particular classes of documents; or
(c)in relation to particular issues; or
(d)by a specified date.
In Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314, Lucev FM (as his Honour then was) summarised the relevant considerations in determining whether to make a declaration that discovery is in the interests of the administration of justice. By reference to what was then the Federal Magistrates Act1999 (Cth), his Honour observed at [25]:
In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters as the Court considers relevant. Those other matters might include:
(a)       the relevance of any documents sought to be discovered;
(b)       the volume of documents sought to be discovered;
(c)whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;
(d)       whether discovery would narrow the issues;
(e)       whether both parties seek discovery;
(f)       whether there is consent to discovery;
(g)       whether discovery is “of benefit” in the litigation; and
(h)       the effect of discovery on litigants, especially, vulnerable litigants.

In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116, the Federal Court considered the issues of “disclosure generally” and relevance under the then Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), Rangiah J observed at [33]:
… it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The ‘Peruvian Guano’ test was formulated on the basis of a desire to “make the rule as large as we can with due regard to propriety”. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.
In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 at [10]-[13], Judge Kendall of the then Federal Circuit Court of Australia observed that:
(a)overall, there is a reluctance in this Court to grant orders for discovery and interrogatories, referring to Vanden Driesden v Edith Cowan University [2012] FMCA 735 where the Court referred to the power as one that is “rarely used”;
(b)section 45(1) of the FCC Act (equivalent to s 176(2) of the FCFCOA Act) is a general statutory prohibition on discovery; and
(c)in this Court there appears to be a presumption that the “fair and expeditious conduct of a proceeding does not require discovery”: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54], noting, however, that this does not mean it will not ever be given.
These observations support the position that discovery is very much the exception and not the rule in the practice and procedure of this Court.
Consideration
In summary, Mr Guss seeks discovery of the following categories of documents:
(1)Documents relating to the sale of goods (paragraphs 2 – 4 of the Discovery Application)
(2)Documents and records relating to the Supreme Court of Victoria Taxation of Costs dated 16 June 2021 (paragraph 5 of the Discovery Application).
(3)Documents and records relating to the Bankruptcy Notice and any correspondence and diary notes of discussions with the Official Receiver regarding the Bankruptcy Notice (paragraph 6 of the Discovery Application).
At the hearing, Mr Guss sought leave to add a further category of documents to be discovered. In summary, those documents relate to the asserted failure of Larkfield to seek recovery from other parties. Mr Guss submitted that those documents are relevant to Mr Guss’ abuse of process claim.
Larkfield opposes the Discovery Application.
I consider each of the above category of documents sought to be discovered in turn.
Discovery of documents in category 1
Mr Guss seeks discovery of the documents relating to the sale of the goods at auction pursuant to the Costs Orders (Sale Documents).
In his written submissions Mr Guss submitted that the Bankruptcy Notice relied upon by Larkfield in the Petition misstates the amount owed by him. He submits that the Bankruptcy Notice is therefore defective and accordingly, is a nullity. On this basis he says that the Petition ought be dismissed. Mr Guss claims that the amount in the Bankruptcy Notice is misstated as Larkfield has failed to account for the proceeds of the sale of goods and as such there is no way to verify that the correct amount has been applied. Accordingly, he submits the documents sought are relevant and ought be discovered.
Mr Guss’ claim that the Bankruptcy Notice misstates the amount owed by him because Larkfield has failed to account for the proceeds of the sale of goods, and as such there is no way to verify that the correct amount has been applied, has formed part of the basis for review, and appeal, in the Registrar’s BN Decision, the FCFCOA Decision and the Federal Court Decision.
At hearing Mr Guss conceded that his challenge to the amounts stated in the Petition arising from Larkfield’s asserted failure to account for the proceeds of the sale of goods had been the subject of “discussion” in the Registrar’s BN Decision, the FCFCOA Decision and the Federal Court Decision. However, Mr Guss submitted that those matters were not relevant to the matter currently before the Court because those proceedings were in relation to an Application to have the Bankruptcy Notice set aside under s 41(5) of the Bankruptcy Act and the matter currently before the Court is whether a sequestration order ought be made pursuant to s 52 of the Bankruptcy Act and whether Larkfield has proved the matters stated in the Petition. In this regard Mr Guss relies on the comments of Gummow J in Re Pollard: Ex parte Lensing Management Co Pty Ltd [1991] FCA 823 (Pollard) where his Honour said at [13]:
As I have said, the jurisdiction of the Court was invoked by the application of the debtor for an order setting aside the bankruptcy notice. The sources of the Court's jurisdiction to make such an order were discussed by Lockhart J. in Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 at 129-131. What is immediately significant is that the making of that application, its dismissal, the presentation of the petition and the opposition to the petition, are elements in the one "matter" in respect of which jurisdiction is conferred by the Parliament upon this Court; see State of Western Australia v Wardley Australia Limited (1991) 102 ALR 213 at 224-6.
Mr Guss also relied upon the following comments of his Honour at [19] in Pollard:
…In my view, consistently with the manifest purpose of s. 52, the Court cannot relieve or excuse the creditor of the requirement to prove the matters stated in the petition where the debtor disputes the commission of the act of bankruptcy upon which the petition is founded.
I accept as uncontentious Mr Guss’ submissions that in order for the Court to make a sequestration order under s 43 of the Bankruptcy Act, the Court must be satisfied with the proof of the matters set out in s 52 of the Bankruptcy Act, the first of which is the matters stated in the Petition. I also accept that the onus is on Larkfield to prove the matters in the Petition (amongst other things) and as Gleeson J said in GE Commercial Australia Pty Ltd v Tinkler [2016] FCA 55 at [5]:
A bankruptcy notice is a nullity if it fails to meet a requirement made essential by the Act: Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34; (1988) 165 CLR 71 at 79; see also The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915; (2000) 109 FCR 33 at [22] to [25]. A debtor may dispute the validity of the bankruptcy notice on the hearing of the creditor’s petition: Re Pollard; ex parte Lensing Management Co Pty Limited (1991) 33 FCR 284 (“Re Pollard”). Where the defect in the bankruptcy notice is other than a formal one, the notice itself is defective and failure to comply with it does not constitute an act of bankruptcy: Re Pollard at 286.
However, for the following reasons, I reject the submission that therefore discovery of the Sale Documents is in the interests of the administration of justice.
Firstly, the sale of the goods and the credit given for the sale of those goods has already been ventilated and determined multiple times, most recently before Rofe J in the Federal Court Decision arising from Mr Guss’s appeal from the FCFCOA Decision.
At paragraph [42] of the Federal Court Decision her Honour said:
Ground 3 contends that the Notice misstates the amount owed to Mr Guss because Larkfield failed to account for the proceeds of the sale of goods and therefore there is no way to verify the correct amount has been applied.
I accept that the above proceedings were in relation to the Bankruptcy Notice and that the matter now before the Court is whether s 52 of the Bankruptcy Act has been satisfied. However, it is apparent that the matters advanced in relation to the Bankruptcy Notice are the very same matters advanced by Mr Guss in opposition to the Petition. Further, it is clear from his written submissions, and Mr Guss confirmed at hearing, that he continues to contest the Bankruptcy Notice.
At paragraph [43]–[44] her Honour said:
Mr Guss accepted that Judge Anderson’s Costs Orders authorised Larkfield to sell the goods in storage. Larkfield sold those goods for $33,010.83 and applied this as a credit to Mr Guss’ debt in the Notice. He also conceded, before the primary judge and in his written submissions on appeal, that there is nothing in the Act or Bankruptcy Regulations 2021 (Cth) which required Larkfield to provide evidence that accounted for each individual item sold. There was also no order that required Larkfield to account for the sale proceeds in this way.
I therefore accept the primary judge’s finding at [78] that the “respondent’s application to the net sale proceeds [of the goods] against the amount of the judgment debt was permissible and did not give rise to a misstatement of the debt actually owing”. Accordingly, Ground 3 is rejected.
Accordingly, her Honour found that Larkfield had no duty to account for the goods sold or the sums raised from the sale. As already set out, the Special Leave Application was refused, noting that application contended at paragraph [10] that her Honour “erred in paragraph 42-44 that the respondent was not required to account for the proceeds of the sale of the goods authorised by the Order of 9 May 2018 in the County Court proceeding and accordingly that was the proper amount available to be applied to the relevant charge of $157,582.35 as set out in Order 15.2(b) of the said order.”
Accordingly, Larkfield has no duty to account for the goods sold or the sum raised from the sale of those goods. The matters in relation to the sale of goods sought to be advanced by Mr Guss in opposition to the Petition have therefore already been determined. It follows that there can be no issue in relation to the Sale Documents to which discovery can apply which is relevant to the Review Application.
Secondly, I accept Larkfield’s submission that the continued agitation of this issue is an abuse of process. In Quall v Northern Territory of Australia [2009] FCA 18 at paragraphs [100]–[102] Reeves J set out the principles on abuse of process as follows:
First, it is convenient to identify the relevant principles on abuse of process. The concept of abuse of process is founded on the same underlying concerns as res judicata and issue estoppel, viz the concern a person should not be troubled twice for the same cause and public policy concerns in the finality of litigation: see Spalla at [64] and [67] per French J. However, the concept is not limited by reference to those doctrines. Thus, even though the earlier proceedings did not give rise to a res judicata or an issue estoppel, eg because the parties or their privies to the two sets of proceedings were not the same, an attempt to re-litigate an issue that has already been disposed of in other proceedings, may constitute an abuse of process: see Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 (‘Sea Culture’) at 279 per French J, Walton v Gardiner (1993) 177 CLR 378 (‘Walton’) at 393-394 per Mason CJ, Deane and Dawson JJ, Coffey v Secretary, Department of Social Security (1999) 86 FCR 434 at [25] per von Doussa, Branson and Sundberg JJ, Spalla at [66]-[67] per French J and Brock v Minister for Home Affairs [2008] FCAFC 165 at [74] per Lindgren and Tracey JJ.
... The circumstances in which abuse of process may arise are “extremely varied” and are not limited to “fixed categories”: see Rogers v R (1994) 181 CLR 251 at 255 per Mason CJ, Sea Culture at 279 per French J, Spalla at [63] and Batistatos at [15] and [49]. Thus, the concept of abuse of process may extend to prevent the waste of judicial resources and include, as a consideration, the necessity of maintaining confidence in, and respect for, the authority of the courts: see Spalla at [69] per French J. So, too, an attempt to litigate an issue that ought reasonably to have been litigated in earlier proceedings: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 and Spalla at [59]. Finally, the concept may apply to allow proceedings to be struck out that can be clearly seen to be foredoomed to fail: see Walton at 393 per Mason CJ.
In State Bank of NSW v Stenhouse (1997) Australian Torts Reports 81-423 at 64,098, Giles CJ emphasised the importance of the particular circumstances that apply in determining whether it is an abuse of process to re-litigate an issue in subsequent proceedings. His Honour set out a non-exhaustive list of matters relevant to the determination whether an abuse of process was occurring. This non-exhaustive list of matters was adopted by French J in Spalla at [70]. The non-exhaustive list is as follows:
(a)the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
(c)the terms and finality of the finding as to the issue;
(d)the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of -
(f)the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.
This is the fourth proceeding in which this argument has been run by Mr Guss. He raises no new matter in relation to it. It has been the subject of determination by a Registrar, the FCFCOA and the Federal Court. Special leave to appeal to the High Court has been sought and refused. It has therefore been fully and conclusively litigated. In those circumstances it is oppressive and unfair to Larkfield for the issue to be relitigated, has the capacity to undermine public confidence in the administration of justice and runs contrary to the principle of finality of judicial determination. As his Honour said in Pollard at [20]
If the application to set aside the bankruptcy notice had been contested and had been determined by the Court against the debtor, and on the hearing of the petition the debtor sought to reagitate the validity of the bankruptcy notice by relying upon the same or indistinguishable arguments, then the Court might well hold that the earlier adverse decision provided sufficient proof of the validity of the bankruptcy notice and thus of the commission of the available act of bankruptcy. But that is not this case.
Thirdly, on 14 November 2023 Larkfield voluntarily disclosed to Mr Guss documents in relation to the sale of the goods which were in its possession, custody or control. At the Review Application hearing Mr Guss conceded that Larkfield had voluntarily disclosed documents in relation to the sale of goods but submitted that voluntary disclosure did not amount to discovery and submitted that an email from Larkfield to the auctioneer dated 30 July 2018 is substantially redacted. Further, Mr Guss contended that because the documents had been disclosed “under objection” he could not use them. I accept that voluntary disclosure does not constitute discovery. However, on the evidence before the Court Larkfield has disclosed documents to Mr Guss “relating to the sale of goods at auction pursuant to the orders of Judge Anderson made 9 May 2018 which [Larkfield] has in its possession, custody or control” and which are in Mr Guss’ possession, custody or control. As to the assertion that the email of 30 July 2018 has been redacted, there is simply no evidence before the Court as to the content of any of the documents disclosed. In particular, Mr Guss did not lead any evidence as to the documents disclosed or their content. Indeed, Mr Guss appeared to have paid scant attention to the documents disclosed. As to Mr Guss’ contention that the documents were disclosed under objection and he therefore could not use them, that contention must be rejected. Firstly, the correspondence under which the documents were provided at no point states that the documents are produced “under objection.” It provides that the documents are provided notwithstanding that Larkfield:
(a)considers it is not obliged to account for the proceeds of the sale against the judgment debt;
(b)the documents do not contribute to the fair and expeditious conduct of the Review Application; and
(c)does not admit that Mr Guss has an entitlement to discovery.
Secondly, the correspondence at no point states that Mr Guss may not use the documents and such a contention is entirely inconsistent with production of the documents. Further, the correspondence expressly provides that the documents have been produced “to avoid the risk of delay of the hearing of the Creditor’s Petition.”
Accordingly, in light of the above, I also consider that there is no utility in ordering discovery of the Sale Documents.
Finally, as to Mr Guss’ reliance on Pollard, whilst I accept that the Court must be satisfied as to proof of the matters in s 52 of the Bankruptcy Act, and that a bankruptcy notice that does not meet the requirements of the Bankruptcy Act will be a nullity, I am unable to see how Pollard otherwise assists Mr Guss. Firstly, Mr Guss has failed to have regard to paragraph [20] of Pollard, which is set out above. Secondly, in Pollard, the application to set aside the bankruptcy notice was dismissed by consent and without any hearing on the merits and must be read in that context. In the matter currently before the Court, the Bankruptcy Notice has been challenged before the Registrar, in the FCFCOA Decision and in the Federal Court Decision, all without success and in respect of the same arguments now sought to be advanced to oppose the Petition. Thirdly, as to the comments of his Honour at paragraph [13] in Pollard, they seem contrary to Mr Guss’ submission that the previous applications and proceedings in this matter in relation to the Bankruptcy Notice are not in any way currently relevant.
Accordingly, for the above reasons, discovery of the Sale Documents will not contribute to the fair and expeditious conduct of the proceedings; indeed, it will have the opposite effect. Discovery as sought is not in the interests of the administration of justice.
Discovery of documents in category 2
Mr Guss seeks discovery of documents relating to S ECI 2020 03561 submitting that “the discovery application relates to the taxation of costs in the Supreme Court of Victoria and is an issue in the respondent’s claim of overstatement by the applicant in its bankruptcy notice and an issue herein.”
At the hearing, Mr Guss submitted that the discovery of these documents ought be ordered as there was a dispute as to the Costs Order and which costs the money paid as security for costs can be applied to.
It is uncontentious that the Corporate Respondents provided security for costs in the amount of $84,250 in the proceedings in the County Court. The Judicial Registrar ordered that $46,117.49 (Sum) of that sum be applied against the taxation order in S ECI 2021 03561. Mr Guss was not a respondent to that proceeding. Order S ECI 2021 03561 taxed Larkfield’s bill of costs pursuant to the interlocutory orders of Judges Cohen, Cosgrave, Smith and Marks and the Costs Orders.
Mr Guss contends that the Sum ought not have been applied to discharge interlocutory costs and the Bankruptcy Notice, and therefore the Petition overstates the debt by $46,117.49.
For the following reasons, I reject Mr Guss’ submission that the discovery of these documents is appropriate in the interests of the administration of justice.

Firstly, the Costs Proceeding has been determined, a final order of the Costs Court has been made and there has been no appeal of that order, noting that the time for any such appeal has long since expired. In those circumstances, I am unable to see how the documents sought are relevant to the Review Application.
Secondly, this argument also has been litigated and determined multiple times, most recently before Rofe J in the Federal Court Decision arising from Mr Guss’s appeal from the FCFCOA Decision.
At paragraph [24] of the Federal Court Decision her Honour said:
Ground 2 challenges the primary judge’s finding that Larkfield was not required to credit the full security for cost provided by Scandi and Casualife to Mr Guss’ debt in the notice.
I accept that the above proceedings were in relation to the Bankruptcy Notice and that the matter now before the Court is whether s 52 of the Bankruptcy Act has been satisfied. However, it is apparent that the matters advanced in relation to the Bankruptcy Notice are the very same matters now advanced by Mr Guss in opposition to the Petition. Further, it is clear from his written submissions, and Mr Guss confirmed at hearing, that he continues to contest the Bankruptcy Notice. Further, in his written submissions Mr Guss concedes that this matter “was also an issue before Judge Forbes in proceeding MLG1873/2022, the appeal therefrom to Justice Rolfe [sic] her judgement having been delivered on 15 September 2023, which is the subject of the application for Special Leave to Appeal to the High Court…”
Her Honour considered this ground at paragraphs [25]–[41] of the Federal Court Decision. At paragraph [39] her Honour said:
Judicial Registrar Gourlay was therefore entitled to apply the security for costs provided by Scandi and Casualife to satisfy their liability to pay for the “costs of the proceeding” which included interlocutory cost orders. As such, the security of $46,117.49 was not required to be credited to Mr Guss’s debt in the Notice and I reject Mr Guss’s contention with respect to Ground 2 that, by accepting that interlocutory costs are “costs of the proceeding”, the primary judge erred in not finding that the Notice misstated Mr Guss’s debt. Ground 5 can also be rejected as it contends that the Notice is misstated to the extent that $46,117.49 was not credited towards Mr Guss’s total debt.
As already set out, the Special Leave Application was refused, noting that Application contended at paragraph [5] that her Honour erred (without amendment):
in finding in paragraph 39 of her reasons that Judicial Registrar Gourlay was ‘therefore entitled to apply the security for costs provided by Scandi and Casualife to satisfy their liability to pay for the ‘costs of the proceeding which included interlocutory costs orders’, firstly as she did no such thing as is apparent from the wording of the interlocutory order itself, and secondly, as the Learned Judge had erred in finding that the interlocutory costs were part of the ‘costs of the proceeding’ under the costs order.
Accordingly, there is no dispute as to the Costs Order or in relation to which proceedings security for costs may be applied. The matters in relation to the Costs Order sought to be advanced by Mr Guss in opposition to the Petition and the Bankruptcy Notice have therefore already been determined. It follows that there can be no issue in relation to documents relating to S ECI 2020 03561 to which discovery can apply which is relevant to the Review Application.
Secondly, this is the fourth proceeding in which this argument has been run. For the reasons set out above, I accept Larkfield’s submission that the continued agitation of this issue, in circumstances where it is has been litigated and finally determined, is an abuse of process and discovery cannot therefore be in the interests of the administration of justice.
Accordingly, the documents sought to be discovered are not relevant to the Review Application and do not contribute to the fair and expeditious conduct of the proceeding. It is therefore not in the interests of the administration of justice for discovery of those documents to be ordered.
Discovery of documents in category 3
In relation to the documents sought in Category 3, Mr Guss submits that:
Item 6 of the respondents discovery application was also an issue before Justice Rolfe in proceeding MLG1873/2023 and an issue in the High Court special leave application M74/2023 therefrom and an issue in this proceeding, as an abuse of process by the applicant in respect to the bankruptcy notice and at is submitted that an order for discovery of the documents pertaining thereto should be ordered to be discovered
At the hearing, Mr Guss submitted that the documents of which discovery is sought were relevant to a claim of abuse of process in relation to the Petition. Mr Guss submitted that Larkfield had not fully disclosed to the Official Receiver that there was a dispute as to the quantum claimed in the Bankruptcy Notice and that the failure to do so amounts to an abuse of process. Mr Guss submitted that the Court must look to issues concerning the validity of the Bankruptcy Notice, as if there is a fault in the Bankruptcy Notice the Petition must be dismissed. It was submitted that, accordingly, the documents were relevant to the Review Application and discovery should be ordered in the interests of the administration of justice.
I reject Mr Guss’ submission that the discovery of these documents is appropriate in the interests of the administration of justice. Mr Guss did not identify any legislative or regulatory requirement that a party applying for a bankruptcy notice must fully disclose to the Official Receiver any dispute as to the quantum of the debt owed. Nor did Mr Guss refer the Court to any relevant authorities in support of this proposition. In those circumstances, I am unable to see how discovery of these documents would contribute to the fair and expeditious conduct of the Review Application. It is also to be noted that the Special Leave Application, which was refused, contended at paragraph [14](b) that her Honour erred (without amendment):
in not finding that an abuse of process had occurred by the respondent…not having provided to the Officail Receiver before the bankruptcy notice was issued the information necessary for the Official Reciver to have satisfied himself that the information contained in the draft submitted by the respondent was correct including whether the interlocutory order of $46,117.69 should have been included as a credit.
Leave to add a further category of documents
As set out above, in his written submissions Mr Guss sought leave to amend the Discovery Application to add a further category of documents to be discovered. In summary, those documents relate to the asserted failure of Larkfield to seek recovery from the Corporate Respondents.
At hearing Mr Guss submitted that the failure of Larkfield to seek recovery from the Corporate Respondents was an abuse of process. Mr Guss submitted that this failure was relevant to the amount claimed in the Petition and was relevant to whether there was “other sufficient cause” that a sequestration order ought not be made pursuant to s 52(2)(b) of the Bankruptcy Act. Mr Guss submitted that it was a matter of natural justice, common sense and fairness that Larkfield ought seek recovery from the Corporate Respondents.
Larkfield opposed the granting of leave to amend the Discovery Application.
For the reason set out below, I decline to grant leave for Mr Guss to amend the Discovery Application to include this further category of documents.
Firstly, Mr Guss and the Corporate Respondents are jointly and severally liable for the judgment debt and the Costs Order. Mr Guss did not refer the Court to any authority in support of his contention that in those circumstances as a matter of fairness and natural justice, Larkfield ought first seek recovery from the other parties and not Mr Guss. However, in any event, the evidence before the Court is that Larkfield determined not to seek recovery from the Corporate Respondents because Scandi International Pty Ltd and LHV Pty Ltd are companies with $2 issued capital and both are deregistered. Casualife Furniture International Ltd is a Hong Kong company and resides outside the jurisdiction. In such circumstances, Larkfield determined it would therefore not be economic to seek recovery from these respondents. Further, it was for these very reasons that security for costs was sought in both the County Court and the Court of Appeal proceedings.
Secondly, this argument was litigated and determined in both the FCFCOA Decision and the Federal Court Decision.
At paragraph [48] of the Federal Court Decision her Honour said:
Mr Guss contended that issuing the Notice is an abuse of process for three reasons. First, he submitted that Scandi and Casualife were jointly and severally liable for the costs orders in the County Court proceeding and “as matter of natural justice and fairness the respondent is obligated at least to endeavour to recover these costs from the principal parties”. This submission was rejected by the primary judge at [98]-[106] and Mr Guss has not pointed to any error in that reasoning. I agree with the primary judge that, in circumstances where Scandi is deregistered and Casualife is a Hong Kong company, there is no point in attempting to recover from either of them. Further, as both companies were issued with letters of demand but did not pay, it is not an abuse of process for Larkfield to pursue Mr Guss for the entire costs of the proceeding for which he is jointly and severally liable.
As already set out, the Special Leave Application was refused, noting that application at paragraph [14](a) contended that her Honour (without amendment):
…erred in not finding that an abuse of process had occurred by the respondent…not having endeavours to recover the costs claimed in the bankruptcy notice owing by the other parties to the County Couirt proceedings and the Supreme Court proceeding (referred ti in the table set out at paragraph 19 of the reasons ) before issuing the bankruptcy notice and to endeavour to recover same against the appellant solely is improper and an abuse of the process
Accordingly, the matters sought to be advanced by Mr Guss in opposition to the Petition on the basis of abuse of process for the asserted failure by Larkfield seek recovery from the Corporate Respondents have already been determined. It follows that there can be no issue in relation to the documents sought to which discovery can apply which is relevant to the Review Application. Ordering discovery would be of no utility and would not contribute to the fair and expeditious conduct of the proceeding. It is therefore not in the interests of the administration of justice for discovery of those documents to be ordered. Accordingly, I decline to grant leave to amend the Discovery Application as sought.
Disposition Discovery Application
For the above reasons, the Discovery Application is dismissed.
PART C – ADJOURNMENT APPLICATION
As already set out, following dismissal of the Discovery Application, Mr Guss made an oral application that the hearing of the Review Application be adjourned. The primary basis upon which this application was advanced was to allow an appeal of the Discovery Application to be made. In addition, Mr Guss also submitted that the Review Application ought be adjourned because:
·he was “a bit unwell”; and
·Larkfield had failed to comply with r 4.05 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Bankruptcy Rules).
At the hearing, I dismissed the adjournment application.
Legal principles governing adjournments
The High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (Aon Risk) at [30] per French CJ and [97]–[103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ, observed that an application must be considered in the relevant statutory, factual and case management context.
In the relevant statutory context, s 190 of the FCFCOA Act provides that:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a)according to law; and
(b)as quickly, inexpensively and efficiently as possible.
To assist the Court, the parties must avoid undue delay, expense and technicality: r 1.04(2)(a) of the Rules.
In Zetta Jet Pte. Ltd v The Ship “Dragon Pearl” [2018] FCA 878 Burnley J said at [37]–[38]:
As the High Court made clear in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON), the types of matters that should be considered in the context of an adjournment application include: (a) the explanation for the adjournment; (b) the detriment to other parties; (c) the detriment to the court and other litigants, and; (d) the choices made by the parties as to the claims to be made and how they are to be framed. That, of course, is not an exhaustive list.
In the current context it is also apposite to note that in the exercise of its discretion it is appropriate for the Court also to consider the position of other litigants and confidence in the judicial system generally: AON at [5] (French CJ) and [111] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is for the plaintiffs to persuade the Court, on sufficient material, that an adjournment is appropriate. As the plurality in AON said at [103], [106], [107], if an application that would result in an adjournment is sought and no, or no sufficient explanation is given then the application should be refused. French CJ said (at [4]) that where an application is made “late in the day”, without adequate explanation and necessitating the vacation of a trial date, the applicant bears a heavy burden to show that the exercise of the Court’s discretion should be in its favour.
Legal principles governing adjournment of creditor’s petition
Pursuant to s 33(1)(a) of the Bankruptcy Act, the Court has power to adjourn any proceedings under the Act before it on such terms as it thinks fit. That includes proceedings based on a creditor’s petition.
In Rotstein & Associates v Slaveski [2010] FCA 493 at [17] Bromberg J said:
It is evident that s 33(1)(a) gives the Court a wide discretion in relation to the grant of an adjournment. As Sweeney J (with whom Franki J agreed) stated in Field v Commercial Banking Co of Sydney Ltd [1978] FCA 46; (1978) 37 FLR 341 at 349, it would be unwise to attempt to draw up an exhaustive catalogue of the circumstances to which the Court should pay regard in considering an application for an adjournment of a creditor’s petition. However, the Court’s discretion should be exercised with a mind to the policy objectives of the Bankruptcy Act. Relevantly to the issues before me, those objectives include the public interest in stopping individuals who are unable to meet their debts from continued insolvent trading and assisting creditors who are unable to recover debts owed to them: See Rozenbes v Kronhill [1956] HCA 65; (1956) 95 CLR 407 at 414.
Consideration
For the following reasons, I declined to grant the adjournment sought by Mr Guss.
Appeal of dismissal of Discovery Application
Firstly, the primary basis upon which Mr Guss sought adjournment of the Review Application was to allow him to appeal the dismissal of the Discovery Application. As the decision to dismiss the Discovery Application is interlocutory in nature Mr Guss requires leave to appeal in the Federal Court of Australia: s 24(1A) of the Federal Court of Australia Act1976 (Cth). Given reasons had not been provided for the dismissal of the Discovery Application at the time at which Mr Guss made his adjournment application, it appears that the basis of the application is simply that Mr Guss disagrees with the outcome. I am therefore unable to see how it could be said that Mr Guss has an arguable prospect of success on appeal, such as to support an adjournment application.
No final determination
Secondly, no final determination as to the Review Application had been made. If the Review Application were to be upheld and the Petition dismissed, Mr Guss would suffer no prejudice and the subject matter of the application for leave to appeal would be rendered nugatory. Further, if he is unsuccessful upon the Review Application being finally determined, Mr Guss has a right of appeal.
Delay and prejudice
Thirdly, this matter has been on foot for almost a year. The sequestration order was made on 28 September 2023. It has been the subject of a number of previous adjournments. In my view, further delay is not consistent with the overarching purpose set out in s 190 of the FCFCOA Act. Further, public policy requires that insolvents be dealt with. In addition, a petitioning creditor is prima facie entitled to proceed with its application once formalities for a successful petition are satisfied, in the absence of good grounds for adjournment. The creditor has access to the property of the debtor from the commencement of the bankruptcy, and a delay to the same is prejudicial to the creditor: Kakavas v Precise Interpreters Ltd [2010] FCA 915; 8 ABC(NS) 363 at [24].
Fourthly, Larkfield has now attended for the hearing of the Review Application on four occasions. On each occasion it has been represented by Counsel, has filed fresh affidavit material in accordance with r 4.06 of the Bankruptcy Rules and has made witnesses available for cross examination. I therefore consider Larkfield will suffer prejudice should the matter be further adjourned.
Mr Guss’ health
Fifthly, as to Mr Guss’ submission that the adjournment ought be granted because he is “a bit unwell”, there is no evidence before the Court to support this submission. In particular, there is no evidence before the Court that even if, as submitted, Mr Guss is “a bit unwell”, he is sufficiently unwell to preclude his participation in the hearing of the Review Application. Further, due to the number of previous adjournments granted on the basis of Mr Guss’ health, and the opinion of his treating practitioner on 7 December 2023 that Mr Guss would be unfit “for the foreseeable future”, orders were made on 8 December 2023 that Mr Guss confirm his capacity to attend the hearing on 27 March 2024 by no later than 13 March 2024. On 13 March 2024 Mr Guss confirmed his capacity to attend the hearing on 27 March 2024. Further, as a solicitor Mr Guss can be assumed to be aware of the need to file appropriate medical evidence in support of an adjournment request sought on the basis of ill health. He did not do so.
Non compliance with the Bankruptcy Rules
Sixthly, as to Mr Guss’ submission that Larkfield has failed to comply the Bankruptcy Rules, as I understand it Mr Guss:
(a)takes issue with the “late” filing of the affidavit of search and debt required under r 4.06(3) of the Bankruptcy Rules and submits that it is required to be filed 5 days before the hearing; and
(b)says that a copy of consent to act as a trustee was not served.
Rules 4.05 and 4.06 of the Bankruptcy Rules provide as follows:
4.05     Documents to be served
Unless the Court otherwise orders, at least 5 days before the date fixed for the hearing of a creditor’s petition, the applicant creditor must serve on the respondent debtor:
(a)the creditor’s petition; and
(b)a copy of the affidavit, or affidavits, verifying the petition required by subsection 47(1) of the Bankruptcy Act; and
(c)if applicable, a copy of the affidavits relating to the petition required by rule 4.04; and
(d)a copy of any consent to act as trustee of the debtor’s estate filed under section 156A of the Bankruptcy Act.
4.06     Additional affidavits to be filed before hearing
(1)Before the hearing of a creditor’s petition, the applicant creditor must comply with this rule.
(2)The applicant creditor must file an affidavit that:
(a)states that the documents required to be served under rule 4.05 have been served, and when and how they were served; and (b) has attached to it a copy of the documents that were served and proof of service in relation to the documents.
(3)The applicant creditor must file an affidavit, of a person who has, no earlier than the day before the hearing date for the petition, searched, or caused a search to be made, in the National Personal Insolvency Index, that:
(a)sets out the details of any references in the Index to the debtor; and
(b)states that there were no details of a debt agreement, about the debt on which the applicant creditor relies, in the Index:
(i)        on the day when the petition was presented; and
(ii)       on the day when the search was made; and
(c)       has attached to it a copy of the relevant extract of the Index.
(4)The applicant creditor must file an affidavit of a person who knows the relevant facts that:
(a)was sworn as soon as practicable before the hearing date for the petition; and
(b)states that each debt on which the applicant creditor relies is still owing.
(5)If a debt stated in the petition is an amount payable to the applicant creditor under a judgment of a court that ordered the amount to be paid into the court, the applicant creditor must file an affidavit:
(a)of a person who has, not earlier than the day before the hearing date for the petition, searched in the proper office of the court; and
(b)that states whether the amount of the debt (or part of that amount) has been paid as ordered.

This submission is misconceived and in no way supports the granting of an adjournment of the Review Application.
As already set out, the Review Application was most recently listed for hearing on 27 March 2024. The relevant affidavits of search and debt were filed at 3.28pm on 26 March 2024.
Rule 4.06(3) of the Bankruptcy Rules provides that the affidavit of search must be by a person who has no earlier than the day before the hearing searched the National Personal Insolvency Index (or caused such a search to be undertaken). Accordingly, in the present circumstances, this search could not have been undertaken prior to 26 March 2024. In those circumstances, I am unable to see how filing the affidavit of search on 26 March 2024 is “late” filing as asserted by Mr Guss. Further, it is clear that on a plain reading that the affidavit of search required to be filed under r 4.06(3) of the Bankruptcy Rules is in addition to, and separate from, the documents required to be served under r 4.05 of the Bankruptcy Rules and that it is only the latter documents that are required to be served 5 days before the hearing. In addition, as the search which is attested to under r 4.06(3) must not be earlier than the day before the hearing, it cannot be correct that the Bankruptcy Rules require service of that affidavit 5 days before the hearing.
Rule 4.06(4) of the Bankruptcy Rules provides that the affidavit of debt must be filed as soon as practicable before the hearing date. As set out above, the hearing date was 27 March 2024 and the affidavit of debt was filed on 26 March 2024. Accordingly, I am unable to see how this constitutes late filing. As with r 4.06(3), it is clear that on a plain reading that the affidavit of debt required to be filed under r 4.06(4) is in addition to, and separate from, the documents required to be served under r 4.05 and that it is only the latter documents that are required to be served 5 days before the hearing. In addition, as the affidavit under r 4.06(4) must be sworn as soon as practicable before the hearing, it cannot be correct that the Bankruptcy Rules require service of that affidavit 5 days before the hearing.
Finally, as to the assertion that a copy of the Trustee’s Consent to Act had not been served on Mr Guss, the evidence before the Court is that this document was served on Mr Guss by prepaid post and email on 10 August 2023, in accordance with the 8 August Orders.
Utility
Finally, for the reasons set out below, I do not consider there is any utility in granting an adjournment of the Review Application.
Disposition of Adjournment Application
For the reasons set out above, the adjournment application is dismissed.
PART D – REVIEW APPLICATION
Legal principles regarding Applications for review
Rule 21.04 of the Rules provides that a review of the exercise of power by a Registrar under s 256 of the FCFCOA Act must proceed by way of a hearing de novo.
Accordingly, a review of a sequestration order in bankruptcy made by a registrar is to proceed by way of a hearing de novo, and the applicant creditor’s petition is to be considered afresh. However, this is subject to the following principles enunciated by the Full Court of the Federal Court in Bechara v Bates [2021] FCAFC 34 at [27] (Allsop CJ, Markovic and Colvin JJ):
(a) The application for review leads to a hearing de novo of the creditor’s petition.
(b)The hearing (or rehearing) of the creditor’s petition is not prosecuted by the debtor (applicant for review) but by the creditor in the proceeding in which the registrar’s order was made.
(c)The application for review is a demand that the claim for relief (the sequestration order) be heard by a judge.
(d)The onus is upon the creditor to prosecute its petition. The only onus of the debtor/bankrupt against whose estate a sequestration order has been made is to prove either solvency or any other sufficient cause under s.52(2) of the Bankruptcy Act 1966 (Cth).
(e)An appreciation of the above considerations makes it evident that summary or default judgment terminating an application for review is highly likely to be misconceived and founded upon a misconception that the applicant for review has an onus to prosecute an application or to show error in the approach of the registrar.
Bankruptcy legal principles
Part III, Division 2 of the Bankruptcy Act confers broad jurisdiction on this Court in bankruptcy. A brief summary of the relevant provisions follows.
Bankruptcy notice
The Official Receiver may issue a bankruptcy notice upon application of a creditor who has obtained a final judgment or order against a debtor of the kind described in s 40(1)(g) and is for an amount of at least the statutory minimum (ie, $10,000): s 41(1)(a)(i)-(ii) of the Bankruptcy Act. A bankruptcy notice shall not issue in certain circumstances, including where at the time of the application for the issue of the bankruptcy notice, the judgment is stayed: s 41(3) of the Bankruptcy Act.
Creditor’s petition
Section 44(1) of the Bankruptcy Act provides that a creditor’s petition may be presented against a debtor in the case of:
·a single creditor and a single debt owing by the debtor to the petitioning creditor a debt in excess of the statutory minimum ($10,000);
·the debt owed is in a liquidated sum due at law or in equity (or part of each) or is payable immediately or at a certain future time; and
·the act of bankruptcy was committed within six months before the presentation of the petition.
Where a petitioning creditor is a secured creditor, they are required to set out in the petition the particulars of their security in accordance with s 44(4) of the Bankruptcy Act. Sections 44 and 47 of the Bankruptcy Act, and Part 4 of the Federal Court (Bankruptcy Rules) 2016 also proscribes further conditions with respect to creditor’s petitions.
Subsections 52(1) and 52(2) of the Bankruptcy Act identify matters as to procedure and proof of a creditor’s petition, and provide:
(1)      At the hearing of a creditor’s petition, the Court shall require proof of:
(a)the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);
(b)       service of that petition; and
(c)the fact that the debt or debts on which the petitioning creditor relies is or are still owing:
and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.
…
(2)If the court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:
(a)       that he or she is able to pay his or her debts; or
(b)       that for other sufficient cause a sequestration order ought not be made;
it may dismiss the petition.
Sequestration order
A person becomes “a bankrupt” upon the making of a sequestration order: see s 43(2) of the Bankruptcy Act.
Jurisdiction to make a sequestration order exists where a debtor has committed “an act of bankruptcy”; at the time when the act of bankruptcy was committed, the debtor had a proscribed connection with Australia: s 43(1) of the Bankruptcy Act.
The Bankruptcy Act[1] defines an “act of bankruptcy” to include a circumstance where a creditor has:
·obtained a final judgment or order (the effect of which has not been stayed) against a debtor;
·has served the debtor a bankruptcy notice under the Act; and
·the debtor does not, within the time fixed for such compliance (in the case of service in Australia):
·comply with the requirements of the bankruptcy notice; or
·satisfy the Court that they have a counter-claim, set-off or cross demand equal to or exceeding the judgment debt payable and that could not have been set up in the action or proceeding in which the judgment or order was obtained: s 40(1)(g) of the Bankruptcy Act.
[1] Part IV, Division 1 Bankruptcy Act 1966
Where, before the expiration of the time fixed for compliance with a bankruptcy notice, a debtor has made an application to set aside the bankruptcy notice on grounds of a counter-claim, set-off or cross demand as referred to in s 40(1)(g) of the Bankruptcy Act, s 41(7) provides that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.
Consideration
Application in a Proceeding
As set out earlier, the Review Application seeks review of the decision of the Judicial Registrar to sequester the estate of Mr Guss under s 52 of the Bankruptcy Act and dismiss an Application in a Proceeding. At the hearing Mr Guss confirmed that he pressed review of the Application in a Proceeding and I address that matter first.
The Application in a Proceeding was filed on 26 September 2024 and accompanied by two affidavits of Mr Guss.
The Application in a Proceeding is set out as follows (without amendment);
On the grounds stated in the accompanying affidavit or other document prescribed by the Rules, the Applicant claims:
1.Pursuant to S.41 (6A) of the Bankruptcy Act 1966 ( the Act) that the time for compliance with Bankruptcy Notice BN 256 470 be extended to a date after the hearing and determination of the applicants appeal against the decision and orders of Rafe, J in Federal Court proceeding VID239/2023 or further order, or alternatively in proceeding MLG1873/2023 or MLG591/2023 in the Federal Circuit and Family Court as the court may please.
2.That the hearing of the Creditors Petition in proceeding MLG591/2023 be stayed or adjourned until the hearing and determination of the appeal by the applicant in respect to the reasons and orders of the decision of Justice Rafe in Federal Court proceeding VID239/2023 delivered 15 September 2023 ,or further order, or alternatively dismissed on granting of the extension of time for compliance as sought above.
3. That the court make such other or further orders herein as may be appropriate.
4. Costs.
Accordingly, the relief sought in the Application in a Proceeding was to allow the Special Leave Application to be determined. As already set out, the Special Leave Application was refused on 7 March 2024. Notwithstanding Mr Guss confirming at the hearing that he continued to press the Application in a Proceeding, it is apparent that the basis of the application no longer exists. The Special Leave Application has been determined and refused. As such, given the hearing of the Application in a Proceeding is to proceed by way of a hearing de novo, the application is now redundant and the relief sought of no utility. The application is therefore accordingly dismissed.
Extension of time for compliance
At the hearing, following comment from the bench as to the de novo nature of the hearing and the relief sought in the Application in a Proceeding, Mr Guss made an oral application for time to comply with the Bankruptcy Notice to be extended.
It is uncontested that pursuant to s 41(6A) of the Bankruptcy Act the Court has power to grant an extension of time for compliance with a bankruptcy notice (s 41(6A)(b) of the Bankruptcy Act). However, for the following reasons I decline to grant an extension of time for compliance with the Bankruptcy Notice.
Section 41(6A) of the Bankruptcy Act provides as follows:
Where, before the expiration of the time fixed for compliance with a bankruptcy notice:
(a)proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application has been made to the Court to set aside the bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
Section 41(6C) of the Bankruptcy Act is not presently relevant.
Mr Guss relies on the decision in Streimer v Tamas [1981] FCA 140; (1981) 37 ALR 211; 54 FLR 253 (Streimer). Mr Guss submits that on the basis of Streimer time for compliance with the Bankruptcy Notice may be extended pursuant to s 41(6A) after time has expired for compliance where the application to set aside the Bankruptcy Notice was made within the time prescribed.
Larkfield submits that an extension of time for compliance may be granted after the time for compliance with the Bankruptcy Notice has already expired, but only where the application for an extension has been made before the time for compliance has expired. I accept that submission.
Streimer, and other cases which have considered it, were analysed by Gummow J in Re: Roland Bleyer Ex Parte: TCN Channel 9 Pty Limited [1993] FCA 117, where his Honour said of Streimer “in that case, the application under the section had been instituted during the currency of the bankruptcy notice although it had not been disposed of until after the period had expired.”
In the present case:
·the time for compliance with the Bankruptcy Notice was 5 April 2023;
·on 5 April 2023, Mr Guss applied for, and failed to secure, an extension of time for compliance with the Bankruptcy Notice before the FCFCOA;
·the Bankruptcy Notice expired at the time of delivery of the FCFCOA Decision;
·in the appeal of the FCFCOA Decision to the Federal Court, Mr Guss sought a fresh extension of time for compliance. Her Honour declined to grant an extension finding that the appeal to the Federal Court had not been filed until 13 April 2023 and therefore did not satisfy the pre-requisite to making such an order that the proceeding be instituted “before the expiration of the time fixed for compliance with the bankruptcy notice: see, eg, Re Riordan; Ex parte Riordan v Direct Acceptance Corp Ltd (1995) 63 FCR 147 at 148-149 (Foster J).”; and
·the current oral application has been made almost 12 months after the time for compliance with the Bankruptcy Notice expired.
In those circumstances, I do not consider that this Court has jurisdiction to make the orders sought, or that Streimer stands for the propositions advanced by Mr Guss. However, even if that be wrong, I would decline to grant an extension of time as sought. Mr Guss has not provided any reasons why I should depart from the primary judge in the FCFCOA Decision or from her Honour in the Federal Court Decision in declining to extend the time for compliance with the Bankruptcy Notice.
Petition
Larkfield seeks a sequestration order against Mr Guss. The act of bankruptcy relied upon is non compliance with the Bankruptcy Notice. As set out above, the Bankruptcy Notice has been the subject of a number of reviews and appeals; however, as at the date of the hearing the Bankruptcy Notice has not been set aside. As also set out above, time for compliance with the Bankruptcy Notice was 5 April 2023.
The Petition was presented on 6 April 2023, being the day after the FCFCOA Decision.
Larkfield contended that it had made out its proof of the matters contained in s 52(1) of the Bankruptcy Act, as further informed by rr 4.04 and 4.06 of the Bankruptcy Rules.
Mr Guss opposes the petition on the following grounds:
·if an extension of time for compliance with Bankruptcy Notice BN256 470 is granted as sought by the respondent, upon which non compliance therewith is the basis for the petition, the petition must be dismissed or alternatively stayed or adjourned until the hearing and determination of the respondent’s appeal against the decision and orders of Rofe J in Federal Court proceeding VID239/2023 and if the respondent is successful in the appeal will require to be dismissed in any event;
·the Petition claims an overstated amount; and
·the issue of the Petition is an abuse of process.
Extension of time
I have earlier addresses Mr Guss’ submissions in relation to an extension of time for compliance with the Bankruptcy Notice and I refer to and repeat those comments here.
Service of the creditor’s petition and other documents
As set out above, the 8 August Orders dispensed with personal service of the Petition and other documents on Mr Guss and provided for service by email, and by prepaid post to two addresses.
Other than in relation to a copy of the Trustees’ Consent to Act, which is addressed above, Mr Guss does not contest that service was properly effected.
The Court has before it affidavits deposing to the service on Mr Guss of the Bankruptcy Notice, the Petition, the affidavit verifying the Petition, an affidavit as required by r 4.04(1)(a) of the Bankruptcy Rules, an affidavit deposing to the service of the Bankruptcy Notice and a copy of the Trustee’s Consent to Act, in accordance with the 8 August Orders.
Statutory conditions on which a creditor may petition
On the evidence before the Court I am satisfied that:
(a)the debt owed by Mr Guss is in excess of $10,000 (being the statutory minimum) (s 44(1)(a) of the Bankruptcy Act);
(b)the debt is immediately owed and payable by Mr Guss to the applicant (s 44(1)(b) of the Bankruptcy Act); and
(c)the act of bankruptcy, being the failure to comply with the Bankruptcy Notice, occurred on 5 April 2023, which was within six months before the presentation of the Petition on 6 April 2023 (s 44(1)(c) of the Bankruptcy Act).
As already set out, Mr Guss contends that the Petition claims an overstated amount. I address this submission again below.
Criteria for satisfaction to make a sequestration order
I address the requirements of s 52 of the Bankruptcy Act.
The Petition
The Court has received an affidavit verifying the Petition for the purposes of the proof required at s 52(1)(a) of the Bankruptcy Act.
As already set out, Mr Guss contends that the Petition claims an overstated amount. The amount in the Petition is the amount claimed in the Bankruptcy Notice. For the reasons set out above, such a contention cannot be sustained and is rejected.
Service of the Petition
I refer to and repeat my comments in relation to service of the Petition set out in paragraphs [149]–[151] above. I am satisfied as to the proof of the matters required in s 52(1)(b) of the Bankruptcy Act.
Verification of the judgment debt still owed
Larkfield relies upon the affidavit of debt of Mr Paino, Property Manager for Larkfield, filed on 26 March 2023. Mr Paino’s affidavit evidence is that he has access to Larkfield’s books and records in respect of Mr Guss and that the amount of $236,394.15 in respect of the Petition remains due and owing by Mr Guss to Larkfield. Under cross examination Mr Paino’s evidence was that he did not calculate the amount of the debt, did not know how it was comprised and had relied on the table contained in the Federal Court Decision as an aide mémoire as to the initial quantum of the debt and its components.
Mr Guss submitted that in light of Mr Paino’s evidence Larkfield had failed to prove that the judgment debt was still owed as is required by s 52(1)(c) of the Bankruptcy Act. For the following reasons, I reject that submission and am satisfied that Larkfield has proved the matters required by s 52(1)(c) of the Bankruptcy Act. Firstly, s 52(1)(c) requires that the Larkfield prove that the debt is still owing. Mr Paino’s affidavit is not the only evidence before the Court of the debt. The Petition sets out that Mr Guss owes Larkfield $236,394.15 and how that sum is comprised. The affidavit verifying the Petition was deposed to by the then Chief Executive Officer of Larkfield, Mr Ades on 6 April 2023. That affidavit deposes to:
(a)Mr Ades having access to the books and records of Larkfield;
(b)the quantum of the debt and its composition as set out in the Petition being within Mr Ades’ knowledge; and
(c)Mr Guss having failed to pay the debt or make arrangements to Larkfield’s satisfaction for payment of the debt.
Secondly, on 13 and 26 September 2023, 13 October 2023, 17 November 2023, and 7 December 2023, Mr Ades filed affidavits of debt confirming that the debt was, at those dates, still owed by Mr Guss. Despite Mr Guss requiring Mr Ades to attend the hearing of the Review Application for cross examination and him doing so, Mr Guss elected not to cross exam Mr Ades. Thirdly, Mr Piano’s evidence was that he had access to the books and records of Larkfield, he had reviewed them for the period 6 April 2023 until 26 March 2024 and Mr Guss had made no payments to Larkfield in that period. Fourthly, Mr Guss does not contend that he has made any payment of the debt. Accordingly, the amount owed by Mr Guss as at 6 April 2023 was still owed at the time at which the Petition was heard. As such, I am satisfied that Larkfield has proved that the debt on which it relies is still owing.
Other requirements

I have earlier addressed Mr Guss’ submissions as to Larkfield’s compliance with rr 4.05 and 4.06 of the Bankruptcy Rules. For the reasons set out above, I am satisfied that Larkfield has complied with the applicable Rules.
Other sufficient cause
Mr Guss contends that Larkfield’s failure to seek recovery from the Corporate Respondents is an abuse of process. On that basis Mr Guss asserts that there is “other sufficient cause” for the purposes of s 52(2)(b) of the Bankruptcy Act as to why the sequestration order ought not be made and the Petition dismissed. For the reasons set out above, no such abuse of process arises and accordingly, there is no other sufficient cause for the purposes of s 52(2)(b) as to why the sequestration order ought not be made and the Petition dismissed.
For completeness, should it be contended that there is other sufficient cause for the purposes of s 52(2)(b) of the Bankruptcy Act based on the asserted overstatement of the amount owed in the Petition, I refer and repeat my comments set out above in relation to this contention. There is no other sufficient cause for the purposes of s 52(2)(b) on this basis as to why the sequestration order ought not be made and the Petition dismissed.
Conclusion
For the reasons set out above, I am satisfied that the jurisdictional pre-requisites are met and there ought be an order sequestrating the estate of Mr Joseph Guss.
PART E – DISPOSITION
Accordingly, I make the following orders:
(1)the Application in a Proceeding filed on 10 November 2023 is dismissed;
(2)the Application for Review of the Registrar’s Decision filed on 6 October 2023 is dismissed; and
(3)the Respondent Debtor pay the Applicant Creditor’s costs of the Application to be taxed in default of agreement pursuant to the Federal Court Rules 2011.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.
Associate:
Dated: 23 May 2024

File number(s):	MLG 591 of 2023
Judgment of:	JUDGE J YOUNG
Date of judgment:	23 May 2024
Catchwords:	BANKRUPTCY – application for review of a registrar’s decision – decision of judicial registrar to sequester the estate of the respondent debtor – extensive litigation history – consideration of application for discovery of documents – consideration of oral application for adjournment – application for review dismissed.
Legislation:	Bankruptcy Act 1966 (Cth) pt IV div 1, ss 33(1)(a), 40(1)(g), 41(1)(a)(i)-(ii), 41(3), 41(5), 41(6A), 41(6C), 41(7), 43, 44(1), 47, 52. Federal Court of Australia Act1976 (Cth) s 24(1A). Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5(a), 175(3), 176(2), 190, 256. Federal Circuit Court of Australia Act 1999 (Cth) s 45(1). Federal Magistrates Act1999 (Cth) Federal Court (Bankruptcy Rules) 2016 pt 4. Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 rr 4.04, 4.05, 4.06, Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.04(2)(a), 13.06(1)(e), div 14.2 r 14.02, r 21.04
Cases cited:	Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 Bechara v Bates [2021] FCAFC 34 Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 GE Commercial Australia Pty Ltd v Tinkler [2016] FCA 55 Guss v Larkfield [2024] HCASL 30 Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105 Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235 Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116 Kakavas v Precise Interpreters Ltd [2010] FCA 915; 8 ABC(NS) 363 Quall v Northern Territory of Australia [2009] FCA 18 Re Pollard: Ex parte Lensing Management Co Pty Ltd [1991] FCA 823 Re Riordan; Ex parte Riordan v Direct Acceptance Corp Ltd (1995) 63 FCR 147 Re: Roland Bleyer Ex Parte: TCN Channel 9 Pty Limited [1993] FCA 117 Rotstein & Associates v Slaveski [2010] FCA 493 Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd [2018] VCC 584 Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd (No 2) [2018] VCC 628 Streimer v Tamas [1981] FCA 140; (1981) 37 ALR 211; 54 FLR 253 Vanden Driesden v Edith Cowan University [2012] FMCA 735 Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 Zetta Jet Pte. Ltd v The Ship “Dragon Pearl” [2018] FCA 878
Division:	Division 2 General Federal Law
Number of paragraphs:	165
Date of hearing:	27 March 2024
Place:	Melbourne
Counsel for the Applicant:	Mr McKillop
Solicitor for the Applicant:	HWL Ebsworth Lawyers
Counsel for the Respondent:	Self-represented litigant

MLG 591 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN THE MATTER OF JOSEPH GUSS, BANKRUPT
BETWEEN:	LARKFIELD INDUSTRIAL ESTATES PTY LTD Applicant
AND:	JOSEPH GUSS Respondent

ORDER MADE BY:	JUDGE J YOUNG
DATE OF ORDER:	23 MAY 2024