Remta v Baker (Executrix)

Case [2022] FCA 1485


FEDERAL COURT OF AUSTRALIA

Remta v Baker (Executrix) [2022] FCA 1485

Appeal from: Baker, as Executrix of the Will of Glenn William Baker v Remta (Federal Circuit and Family Court of Australia (Division 2)), PEG 169 of 2021, orders dated 22 November 2022
File number: WAD 252 of 2022
Judgment of: BANKS-SMITH J
Date of judgment: 9 December 2022
Catchwords: BANKRUPTCY AND INSOLVENCY - where appeal filed from order confirming sequestration order - interlocutory application in the appeal - application for stay of proceedings under sequestration order - where bankrupt a director of company and seeks stay so as to manage significant project being undertaken by company - whether bankruptcy disqualifies the bankrupt from managing companies under the Corporations Act 2001 (Cth) during any stay of proceedings - insufficient evidence from which to assess prospects of success of appeal - where no reasons published by primary judge on review - where open to bring application under s 206G of the Corporations Act - where balance of convenience does not support stay - stay application dismissed
Legislation:

Bankruptcy Act 1966 (Cth) ss 43, 52, 58

Corporations Act 2001 (Cth) ss 201B, 206B, 206G, 206GAB, Part 2D.6

Federal Court Rules 2011 (Cth) r 36.08

Cases cited:

Du Bray v ACW [2020] FCA 1142

Endresz v Australian Securities and Investments Commission [2014] FCA 1139

Frigger, in the matter of an application by Frigger [2019] FCA 1730

Macalister, in the matter of an application by Macalister [2021] FCA 1455

Mehajer v Weston (Trustee), in the matter of Mehajer [2018] FCA 608

Ritson v Commissioner of Police (NSW) [2021] FCAFC 208

Watts, in the matter of Watts [2011] FCA 1185

Division: General Division
Registry: Western Australia
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 30
Date of hearing: 9 December 2022
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Respondent: The Respondent did not appear

ORDERS

WAD 252 of 2022
BETWEEN:

PETER JOHN AUGUSTIN REMTA

Appellant

AND:

TRACEY BAKER AS EXECUTRIX OF THE WILL OF GLENN WILLIAM BAKER

Respondent

ORDER MADE BY:

BANKS-SMITH J

DATE OF ORDER:

9 DECEMBER 2022

THE COURT ORDERS THAT:

1.Application for stay dismissed.

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


REASONS FOR JUDGMENT

BANKS-SMITH J:

  1. On 31 October 2022 a registrar of the Federal Circuit and Family Court of Australia (FCFCOA) made a sequestration order with respect to the estate of Peter Remta.  It appears that the order was made following non-compliance with a bankruptcy notice, which in turn referred to a debt by way of a default judgment entered in favour of the petitioning creditor by the District Court of Western Australia.

  2. The registrar, pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth), stayed all proceedings under the sequestration order for a period of 21 days.

  3. On 17 November 2022 Mr Remta filed an application in the FCFCOA for review of the registrar's decision.  Mr Remta…

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Remta v Baker (Executrix) [2022] FCA 1485
Case
[2022] FCA 1485
Decision Date

CaseChat Overview and Summary

In the matter of Remta v Baker (Executrix), the appellant, Mr Remta, sought an interlocutory stay of the sequestration proceedings under a sequestration order that had been made against him. Mr Remta, who was the director of a company, sought the stay to allow him to manage a significant project being undertaken by the company. The dispute was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the bankruptcy of Mr Remta disqualified him from managing the companies under the Corporations Act 2001 (Cth) during any stay of the proceedings. The court considered whether Mr Remta had provided sufficient evidence to assess the prospects of success of his appeal against the sequestration order and whether the balance of convenience favoured the grant of a stay. The court also considered whether it was open to Mr Remta to bring an application under s 206G of the Corporations Act.

The court found that Mr Remta had not provided sufficient evidence to assess the prospects of success of his appeal. The primary judge had not published reasons for his review, and it was not open to the court to grant a stay without such reasons. Furthermore, the balance of convenience did not support the grant of a stay, as the sequestration order had already taken effect, and the bankrupt's property had vested in the trustee in bankruptcy. The court dismissed the application for a stay.

No further orders were made by the court. The application for a stay of the sequestration proceedings was dismissed.

Orders

Orders of the court

1. Application for stay dismissed.

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

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

Before moving to consider Mr Remta's evidence, it is appropriate to summarise some principles.Principles as to stays and sequestration orders Mr Remta is self-represented before me. He has not pointed to the source of the power that he requests I exercise in order to grant the stay. The time period relevant to s 52(3) of the Bankruptcy Act has expired. I will assume that Mr Remta relies on r 36.08(2) of the Federal Court Rules 2011 (Cth). That rule provides:However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined. An appellant who seeks a stay under r 36.08 of the Rules must satisfy the Court that a stay is required to preserve the subject matter of the litigation, or that the refusal of a stay would make it difficult for the Court, in the determination of the appeal, to grant the relief sought. In short, Mr Remta must establish that there is an arguable point on the proposed appeal or some rational prospect of success in relation to any of the grounds of appeal, and that the balance of convenience favours the grant of a stay: Endresz v Australian Securities and Investments Commission [2014] FCA 1139 at [16]. Mr Remta's application is to be considered in the context that a sequestration order takes effect as soon as it is made. As soon as a debtor becomes a bankrupt, their property immediately vests in the trustee in bankruptcy, under s 43(2) and s 58(1) of the Bankruptcy Act. They remain bankrupt until discharged or until the bankruptcy is annulled. The Court does not have the power to suspend the operation of the sequestration order, but only to stay proceedings under it. The position was neatly summarised by Stewart J in Du Bray v ACW [2020] FCA 1142:[8]Section 153B(1) of the Bankruptcy Act provides that if the court is satisfied that a sequestration order ought not to have been made, the court may make an order annulling the bankruptcy. Under s 37(2) the court does not have power to suspend the operation of a sequestration order. If an appeal against a sequestration order is successful, the sequestration order can be set aside (under s 28 of the Federal Court of Australia Act 1976 (Cth); Simon v Vincent J O'Gorman Pty Ltd (1979) 27 ALR 619 at 625 and 631; De Robillard v Carver [2007] FCAFC 73; 159 FCR 38 at [149]-[150] and [1]) or the bankruptcy may be annulled (under s 153B(1)). In either event the sequestration order has operation while it remains extant: Pattison v Hadjimouratis [2006] FCAFC 153; 155 FCR 226 at [58].[9]There are two points to take from the above. The first is that the power that the court has is not to stay the sequestration order, but only to stay proceedings under the order. The sequestration otherwise immediately takes effect until it is set aside or annulled. The other is that even if the appeal is successful and the sequestration order is set aside, it would have continued to operate in the interim … More recently the Full Court in Ritson v Commissioner of Police (NSW) [2021] FCAFC 208 confirmed the position at [57]‑[66] (Allsop CJ, Lee and Downes JJ).Regardless of any stay, a bankrupt director remains disqualified from acting