Larkfield Industrial Estates Pty Ltd v Guss

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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:
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Details
Case
[2024] FedCFamC2G 465
Decision Date

CaseChat Overview and Summary

Federal Magistrates Act 1999 (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.

43.
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.
44.
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.
45.
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.
46.
The Court must also consider the relevant principles of relevance and privilege, as well as the proportionality of the request. The Court has discretion to consider the costs of discovery and the availability of alternative means of obtaining the information. The Court must also consider the balance of convenience and the need for discovery to prevent injustice. The Court must also consider the effect of discovery on the administration of justice and the need to protect the rights of the parties.
47.
Application for discovery
48.
Mr Guss filed the Discovery Application on 10 November 2023. The affidavit of Mr Guss in support of the Discovery Application stated that the documents sought were material evidence in his de novo application for review. The Court noted that Mr Guss had not previously sought discovery in this proceeding and the documents sought appeared to be largely outside the scope of the matters in issue.
49.
Larkfield opposed the Discovery Application on the basis that the documents sought were not relevant to the issues in the Review Application, were voluminous and would not narrow the issues. Larkfield further argued that the documents sought were not necessary for Mr Guss to make his case and that the discovery was disproportionate to the needs of the case.
50.
The Court considered the principles of relevance, proportionality, and balance of convenience. The Court found that the documents sought were not relevant to the issues in the Review Application and that the discovery was disproportionate to the needs of the case. The Court found that the documents sought were largely outside the scope of the matters in issue and that the discovery was not necessary for Mr Guss to make his case.
51.
The Court dismissed the Discovery Application. The Court noted that the documents sought were not relevant to the issues in the Review Application and that the discovery was disproportionate to the needs of the case. The Court found that the documents sought were largely outside the scope of the matters in issue and that the discovery was not necessary for Mr Guss to make his case.
52.
The Court noted that the documents sought were not relevant to the issues in the Review Application and that the discovery was disproportionate to the needs of the case. The Court found that the documents sought were largely outside the scope of the matters in issue and that the discovery was not necessary for Mr Guss to make his case.
53.
The Court dismissed the Discovery Application. The Court noted that the documents sought were not relevant to the issues in the Review Application and that the discovery was disproportionate to the needs of the case. The Court found that the documents sought were largely outside the scope of the matters in issue and that the discovery was not necessary for Mr Guss to make his case.
PART C - ADJOURNMENT APPLICATION
54.
Following the dismissal of the Discovery Application, Mr Guss made an oral application to adjourn the hearing of the Review Application. Mr Guss submitted that he was unwell and had been admitted to hospital with an acute cardiac condition. Mr Guss submitted that he was not in a fit state to attend the hearing and that the hearing should be adjourned.
55.
The Court considered the application for adjournment in light of the relevant principles and the circumstances of the case. The Court noted that Mr Guss had not previously sought an adjournment and that the adjournment was sought at short notice. The Court noted that Mr Guss had not provided any evidence of his medical condition and that the adjournment was not necessary to ensure a fair hearing.
56.
The Court dismissed the application for adjournment. The Court found that the application was made at short notice and that the adjournment was not necessary to ensure a fair hearing. The Court found that Mr Guss had not provided any evidence of his medical condition and that the adjournment was not necessary to ensure a fair hearing.
PART D - REVIEW APPLICATION
57.
The Review Application was filed on 6 October 2023. The Review Application sought review of the Registrar’s BN Decision made on 28 September 2023. The Review Application also sought a stay or adjournment of the Petition until the determination of the Special Leave Application.
58.
The Review Application raised several grounds of review, including

Orders

Orders of the court

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

1.

Before the Court are two Applications by the respondent debtor (Mr Guss).

2.

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.

3.

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.

4.

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

5.

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.

6.

There is a significant factual history to the matter, which has involved considerable litigation in multiple courts.

Background to the debt

7.

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.

8.

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.

9.

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.

10.

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.

11.

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.

12.

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).

13.

Pursuant to the Costs Orders Larkfield sold the goods left in its possession, realising $33,010.83.

Proceedings following the Bankruptcy Notice

14.

As set out above, the Bankruptcy Notice was issued on 26 July 2022.

15.

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.

16.

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).

17.

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).

18.

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).

19.

On 7 March 2024, the High Court of Australia refused the Special Leave Application: Guss v Larkfield [2024] HCASL 30.

Current proceedings

20.

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).

21.

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.

22.

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.

23.

As noted above, orders were made on 28 September 2023 dismissing the Application in a Proceeding and sequestering the estate of Mr Guss.

24.

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.

25.

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.

26.

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.

27.

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).

28.

On 13 March 2024 Mr Guss confirmed his capacity to appear at the hearing on 27 March 2024.

Conduct of the hearing

29.

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.

30.

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.

31.

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

32.

The Discovery Application was filed on 10 November 2023 and accompanied by an affidavit of Mr Guss.

33.

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.

34.

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,

35.

Larkfield filed written submissions opposing the Discovery Application on 17 November 2023 pursuant to orders made on 16 November 2023.

36.

Further submissions were filed by Mr Guss on 14 February 2024, and by Larkfield on 28 February 2024.

37.

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

38.

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.

39.

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”.

40.

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.

41.

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.

42.

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

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGE J
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

Ratio Decidendi

Legal Principle Established

Established by: JUDGE J

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.