Low v The Owners Strata Plan No. 35790

FEDERAL COURT OF AUSTRALIA

Low v The Owners Strata Plan No. 35790 [2016] FCA 949

Appeal from:

Low v The Owners Strata Plan No. 35790
[2016] FCCA 900

File number(s):

NSD 710 of 2016

Judge(s):

BURLEY J

Date of judgment:

9 August 2016

Catchwords:

BANKRUPTCY AND INSOLVENCY – appeal from decision of the Federal Circuit Court of Australia refusing application to review sequestration order

PRACTICE AND PROCEDURE – interlocutory application – application to dismiss appeal for failing to prosecute the appeal pursuant to r 36.74 of the Federal Court Rules 2011 (Cth) – consideration of prospects of success of the appeal

Legislation:

Bankruptcy Act 1966 (Cth) ss 52, 153B

Federal Circuit Court of Australia Act 1999 (Cth) s 104

Federal Court of Australia Act 1976 (Cth) s 25

Federal Court Rules 2011 (Cth) r 36.74

Cases cited:

Low v The Owners Strata Plan No. 35790
[2016] FCCA 900

Date of hearing:

9 August 2016

Registry:

New South Wales

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

25

Counsel for the Appellant:

The appellant did not appear

Solicitor for the Respondent:

Mr F Shafiq of J S Mueller & Co Lawyers

ORDERS

NSD 710 of 2016

BETWEEN:

LAN HEONG LOW

Appellant

AND:

THE OWNERS STRATA PLAN NO 35790-

Respondent

JUDGE:	BURLEY J
DATE OF ORDER:	9 AUGUST 2016

THE COURT ORDERS THAT:

1.That the appeal be dismissed.

2.That the respondent’s costs be paid out of the proceeds of the bankrupt estate.

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

REASONS FOR JUDGMENT
(Revised from transcript)

BURLEY J:

1. In this proceeding, the respondent has filed an interlocutory application pursuant to rule 36.74 of the Federal Court Rules 2011 (Cth) (the Rules) for the dismissal of the appellant’s appeal on the basis that the appellant has failed to prosecute the appeal.  The proceedings were commenced by notice of appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA) filed on 13 May 2016.  In it, the appellant appealed from a judgment given on 22 April 2016; Low v The Owners Strata Plan No. 35790 [2016] FCCA 900 (Judgment), pursuant to which an application to review a sequestration order made by a registrar of the FCCA against the estate of the appellant was refused. The review was conducted pursuant to subsection 104(3) of the Federal Circuit Court of Australia Act 1999 (Cth) as a hearing de novo.

2. The grounds of appeal relied upon in the present appeal and orders sought are as follows:

   Grounds of appeal

   1.        Procedural mistakes e.g. attend required court hearing dated 22 April 2016. 

   2.Failures to consider factors such as intention of the Managing Agent/Prop of SP35790, willingness to pay versus inability to pay, state law requirements etc.

   3.Factors permitting annulment e.g. impact on my accessibility to employment, restrictions on travel, etc.

   Orders sought

   1.Annulment of the Order…