FEDERAL COURT OF AUSTRALIA
Papatriantafillou v Kekeff [2011] FCA 778
Citation: Papatriantafillou v Kekeff [2011] FCA 778 Parties: CHRISTOS PAPATRIANTAFILLOU v ZORA KEKEFF File number(s): NSD 1045 of 2011 Judge: YATES J Date of judgment: 11 July 2011 Catchwords: PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time Legislation: Bankruptcy Act 1966 (Cth) ss 52(2)(a), 52(3), 153A, 153B
Federal Court Rules O 52 r 15Cases cited: Jess v Scott (1986) 12 FCR 187
Kekeff v Papatriantafillou [2011] FMCA 114
Perpetual Trustee Company Ltd v Smith (2010) 186 FCR 566
Rangott v Marshall (2004) 139 FCR 14
Simon v Vincent J O’Gorman Pty Ltd (1979) 41 FLR 95
Zocchi v The Queen [2000] FCA 1163Date of hearing: 11 July 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondent: Mark Warton Solicitor for the Supporting Creditor: Ms Gunther of Attwaters
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1045 of 2011
BETWEEN: CHRISTOS PAPATRIANTAFILLOU
ApplicantAND: ZORA KEKEFF
Respondent
JUDGE:
YATES J
DATE OF ORDER:
11 JULY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the hearing of the application.
3.The applicant pay the supporting creditor’s costs of and incidental to the hearing of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1045 of 2011
BETWEEN: CHRISTOS PAPATRIANTAFILLOU
ApplicantAND: ZORA KEKEFF
Respondent
JUDGE:
YATES J
DATE:
11 JULY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
The applicant applies for an extension of time within which to file and serve a notice of appeal from a judgment given by the Federal Magistrates Court of Australia on 1 April 2011, by which a sequestration order was made against the applicant’s estate. The presiding Federal Magistrate also made an order for the taxation and payment of the petitioning creditor’s costs and ordered, pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), that all proceedings under the sequestration order be stayed for a period of 21 days.
Under O 52 r 15(1) of the Federal Court Rules, any notice of appeal should have been filed and served within 21 days after judgment was given. The applicant did not take that step. He now seeks the favourable exercise of the power in O 52 r 15(2), which provides that the Court or a Judge “for special reasons” may at any time give leave to file and serve a notice of appeal.
In his reasons for judgment published on 1 April 2011, the presiding Federal Magistrate identified the principal issue arising on the hearing…
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- AGLC
- Papatriantafillou v Kekeff [2011] FCA 778
- Case
- [2011] FCA 778
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the appellant had any grounds to be granted leave to file and serve a notice of appeal beyond the prescribed time limit. The appellant argued that the delay in filing the notice of appeal was due to the respondent's failure to provide the appellant with a copy of the judgment. The appellant claimed that this omission was a significant factor that contributed to the delay and warranted an extension of time. The respondent, on the other hand, argued that the appellant had failed to demonstrate any special circumstances that would justify an extension of time and that the delay was solely due to the appellant's negligence.
In dismissing the application, the court held that the appellant had not demonstrated any special circumstances that would warrant an extension of time. The court noted that the appellant had been aware of the decision of the Primary Judge since it was handed down, and that the appellant had taken no steps to obtain a copy of the judgment or to file a notice of appeal within the requisite time. The court further held that the appellant's claim that the respondent's failure to provide a copy of the judgment was a significant factor contributing to the delay was without merit, as the appellant had failed to demonstrate how this failure had prevented the appellant from filing a notice of appeal within the requisite time. The court also noted that the appellant had failed to demonstrate any prejudice that would result from the delay in filing the notice of appeal.
The court's final orders were that the application be dismissed, that the appellant pay the respondent's costs of and incidental to the hearing of the application, and that the appellant pay the supporting creditor's costs of and incidental to the hearing of the application.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the hearing of the application.
3. The applicant pay the supporting creditor’s costs of and incidental to the hearing of the application.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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