Maytom v Warren McKeon Dickson Solicitors Pty Ltd

[2013] FCCA 1009

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAYTOM v WARREN MCKEON DICKSON SOLICITORS PTY LTD & ORS [2013] FCCA 1009

Catchwords:
BANKRUPTCY – Application for stay of execution of writ of possession – application denied.

Legislation:
Bankruptcy Act 1966, s.153B.
Federal Circuit Court Rules 2001, r.29.11

Applicant: GARY MAYTOM

First Respondent: WARREN MCKEON DICKSON SOLICITORS PTY LTD

Second Respondent: JACKSON LALIC LAWYERS

Third Respondent: MAXWELL WILLIAM PRENTICE

File Number: SYG 355 of 2013

Judgment of: Judge Altobelli

Hearing date: 25 July 2013

Date of Last Submission: 25 July 2013

Delivered at: Sydney

Delivered on: 25 July 2013

REPRESENTATION

The Applicant (self-represented, assisted by Ms Taylor)

Solicitors for the Respondents: Sally Nash & Co

ORDERS

1. The Interim Application filed 24 July 2013 be dismissed.

2. The Applicant Trustee’s costs of the Interim Application filed on 24 July 2013 be costs in the administration of the estate.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 355 of 2013

GARY MAYTOM

Applicant

And

WARREN MCKEON DICKSON SOLICITORS PTY LTD

First Respondent

JACKSON LALIC LAWYERS

Second Respondent

MAXWELL WILLIAM PRENTICE

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By way of an application filed 24 July 2003, Gary Maytom, who is a bankrupt, seeks orders of an interlocutory nature.  The effect of the orders he seeks is that the execution of a writ of possession, which relates to the property in which he resides and which is to be executed tomorrow, be stayed until further order of the court. 

2. His litigation guardian, Ms Taylor, was able to explain in a more fulsome manner that, in effect, if a stay of 42 days would be granted, during that period, Mr Maytom would make an application to seek leave to appeal against the sequestration order that was made.  The application by Mr Maytom is supported by his affidavit sworn and filed on 24 July 2013.  A writ of possession has been filed and Mr Maytom has been given notice to vacate.  He needs to vacate by 12 noon tomorrow, that is, Friday 26 July 2013. 

3. I am informed, and I accept, that the trustee has made preparations to take occupation of the property, assuming the trustee can execute the writ of possession.  Mr Maytom was represented by Ms Taylor as his case guardian.  I must say, Ms Taylor, who I understand is his daughter, would be one of the most articulate case guardians that I have experienced in my time on the bench.  Ms Nash appears on behalf of the trustee and opposes the granting of the stay.

4. There is a considerable amount of background material to which I have had reference.  There are three judgments of Driver FM that are dated 6 March 2012, 8 November 2012 and 4 March 2013, and I will simply incorporate those judgments into these my ex tempore reasons.  It would appear that on 6 March 2012, his Honour made a sequestration order noting that the act of bankruptcy was 15 November 2011.  The respondent debtor appeared, sought an adjournment and was declined an adjournment. 

5. His Honour was satisfied of the matters that provided the grounds for establishing that a sequestration order should be made. On 8 November 2012, his Honour dismissed what appears to have been an application by Mr Maytom to vacate the sequestration order. His Honour treated the application as an annulment application under s.153B, but nonetheless dismissed the same. 

6. On 4 March 2013, his Honour was dealing with an application filed on 4 March.  The transcript of the application before the court is on file, and I have had regard to that, and the significance of the transcript is that it suggests that the concerns, some of which have been explained to me in court this afternoon by Ms Taylor, have been raised before his Honour, but ultimately not accepted by his Honour. 

7. I was referred to a number of other judgments that are relevant to this case. There appear to be three judgments that are relevant. There is a judgment of his Honour Foster J in the Federal Court dealing with an application by Mr Maytom for extension of time and leave to appeal the orders made by the Court, that is, by the Federal Magistrate on 2 August; that application was dismissed. There is a judgment of his Honour Jacobson J in the Federal Court on 17 April 2013, where his Honour did extend to 7 May the time for filing and serving of a notice of appeal, conditional on attending mediation and conditional that the grounds of appeal be limited to the question of the denial of procedural fairness in accordance with the reasons for judgment handed down 17 April, presumably his reasons for judgment.  And then there is another decision of his Honour Jacobson J on 21 May 2013, where his Honour ultimately dismisses the application for an extension of time in which to file and serve a notice of appeal.

8. I accept that those judgments don’t deal with an application for leave to appeal the decision in relation to the sequestration order itself.  Nonetheless, they are relevant in the sense that each of these six litigation events since the sequestration order was made, or six including the sequestration order made, there was opportunity for Mr Maytom to seek to, in effect, attack the fundamental basis of his bankruptcy, and those opportunities have either not been taken or have been unsuccessful. 

9. The most recent orders made by his Honour Driver FM on 4 March are quite detailed, were made in the presence of Ms Taylor and Mr Maytom and, importantly, specifically contemplate that a writ of possession would issue in the event that he failed to deliver up vacant possession.  The affidavit of Allen Marr, sworn 16 April, and the copy of the writ of possession issued on 11 June suggests that obviously possession wasn’t given in accordance with those orders, that is, the orders of 4 March, and that the procedure was put in place which resulted in the writ of possession being issued.

10. Rule 29.11 of the Federal Circuit Court Rules deals with execution, and sub-rule (1) says that a party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order has been made as if it were a judgment or order of that Supreme Court, and sub-rules (2) and (3) go on to talk about implementing that.  

11. The procedure, therefore, is that an order is made by a judge of this court, but that it becomes, for all practical purposes, in the context of enforcement, a judgment of the State Supreme Court, and the rationale for that is plain:  there’s an established enforcement mechanism conducted by the State in the State jurisdiction, and the Federal jurisdiction simply rides “piggyback” on that.  It is, in my experience, a well-established procedure. 

12. Now, the writ of possession is signed by a Registrar.  Concern was expressed about the legality of that.  But I am satisfied that the act of the Registrar in signing the writ was a merely administrative act, and that the judicial power in relation to the writ was exercised by his Honour Driver FM.  In short, I see no technical issue arising from that fact.  A concern was also raised about the fact that the writ itself that was issued by the Sheriff refers to the Supreme Court, but the explanation for that is r.29.11, as I’ve indicated, so I’m not concerned about any technical issues there.

13. There are two issues of concern, and that is whether, in the circumstances of this case, Mr Maytom should be given what, on any objective basis, would be yet another opportunity to seek to, in effect, undo the sequestration order that was made last year.  He faces a formidable obstacle.  I think Ms Taylor quite properly acknowledged that seeking leave to appeal so long after the order was made – and in the circumstances of this case, where there has been so many attempts to, in effect, achieve the same result, all of which have been unsuccessful – is not necessarily something that will be a foregone conclusion.     

14. Indeed, I think that the application on the evidence before me would be farfetched and unlikely to succeed.  The interests of the creditors would need to be balanced against the interests of Mr Maytom as the bankrupt.  The history of the proceedings would strongly contraindicate, in my opinion, the granting of leave to appeal, and in those circumstances, the granting of the stay would ultimately have no merit, and, indeed, I think, would be contrary to the interests of the bankrupt in the circumstances where his estate may well have a surplus.  I say contrary to his interests because it merely increases the costs of the trustee.

15. The other issue is, I recognise, the hardship issue.  It would be, I accept, well within my powers to grant the stay on the basis of hardship to Mr Maytom personally, even if I completely rejected the rest of his case. 

16. It is important to recognise that these decisions cannot be made on the basis of emotion or sympathy in circumstances where the law provides a very clear framework for balancing the interests of bankrupts and their creditors.  In the circumstances of this case, given the litigation history to which I have referred in these ex tempore reasons, and in circumstances where both the orders of Driver FM and the orders of Jacobson J appear to have more than generously provided extra time for Mr Maytom to rearrange his affairs or, alternatively, to do that which he now seeks to do today, it is not possible to say that the hardship that Mr Maytom would experience in being dispossessed of the property is greater than the hardship that would be suffered by the creditors.  Regrettably, the evidence of this case suggests he has had plenty of opportunity to make other arrangements but has not been able to do so. 

17. In the circumstances, there appears to be no legal ground or no hardship ground that would warrant the granting of a stay and, in the circumstances, the order that the court makes is an order that dismisses the application that was filed on 24 July 2013.  The most appropriate order would be that the trustee’s costs of this application be costs in the administration of the estate

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  21 August 2013