Rolls v The Owners of Strata Plan No.12498 - [2003] FMCA 424

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROLLS v THE OWNERS OF STRATA PLAN No.12498

[2003] FMCA 424

BANKRUPTCY – Sequestration order – deceased estate – review of Registrar’s decision – whether grounds for extension of time.

Applicant:

ADEN ROLLS

Respondent:

THE OWNERS OF STRATA PLAN NUMBER 12498

File No:

HZ 27 of 2003

Delivered on:

25 September 2003

Delivered at:

Hobart (by video link to Sydney)

Hearing Date:

25 September 2003

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr M Rapley

Solicitors for the Respondent:

Page Seager

Trustee:

Mr B Harrison

ORDERS

The Application for extension of time filed 22 August 2003 is dismissed.
The costs of and incidental to the application be paid out of the estate of Patricia Miller with such priority as would normally apply pursuant to s.109 of the Bankruptcy Act.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HZ 27 of 2003

ADEN ROLLS

Applicant

And

THE OWNERS OF STRATA PLAN NUMBER 12498

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a Registrar's decision made on

10 July 2003. On that date a sequestration order was made in relation to the estate of the late Patricia Miller, the deceased debtor, and the order was made that the estate be administered under the provisions of Part XI of the Bankruptcy Act. A further order was made that the applicant's costs be fixed at the amount of $2573 and paid with the same priority as if a sequestration order had been made. A further order was made providing that Paul John Cook and Brett Geoffrey Richard Harrison, registered trustees, are appointed trustees of the bankrupt estate of the late Patricia Miller.
That order having been made on 10 July 2003, it was subject, as indicated, to an application for review by Aden Rolls (the Applicant) filed 22 August 2003. The Applicant is the executor of the estate of the late Patricia Miller. At the same time the applicant filed an application, which I take to be an application for extension of time. The order having been made on 10 July 2003, the time period prescribed under Rule 20.01 of the Federal Magistrates Court Rules had clearly expired - that is the 21-day period had expired by the time this application for extension of time and application for review had been filed.
The application for extension of time has been supported by an affidavit sworn by Mr Rolls on 20 August 2003. In support of his substantive application for review the Applicant has sworn an affidavit of the same date filed with the Court.
The issue of the application for extension of time having been raised at the outset it was indicated by the Court that it was appropriate to hear and determine the application for review, but in doing so the Court would then, prior to making any formal orders consider the issue of the application for extension of time, and in doing so it is relevant to take into account generally the merits of the application for review before the Court.
As the hearing is being conducted by video link I thought it convenient to deal with the issues together and I have done so. It is noted that the application for extension of time is neither the subject of consent nor opposition from the respondent to the application for review.
The Court also has received by way of an exhibit documents in a folder entitled “Papers for the Use of the Magistrate”. Those documents relate to the primary material which was made available to the Registrar prior to making the sequestration order on 10 July 2003.

A copy of those documents was provided to Mr Rolls.
Further material by way of updated affidavit evidence has been relied upon by the respondent. First, an updated affidavit of debt sworn by Antoinette Sakr on the 25th day of September 2003; and second, the Court has received a draft of an affidavit of Mark Cameron Rapley, upon the undertaking of the deponent to properly attend to the swearing of that document and provide a copy of that, together with the recent affidavit of Antoinette Sakr, to Mr Rolls by pre-paid post by the end of this week.
The second affidavit, which is in draft form, but which will be sworn this day, by Mark Cameron Rapley is simply an update of an affidavit of search. It does nothing further than to reveal what would be obvious from the material, namely the material now disclosed as a direct consequence of the orders made by the Court on 10 July 2003.
An application for review of a Registrar's decision is a de novo hearing. In this application I invited the respondent to deal with the material relied upon in support of a sequestration order, and as indicated reference has been made to the earlier documents and the more recent documents, which I granted leave to the respondent to file this day in Court.
The Applicant is unrepresented. He has, in relation to the application for extension of time, relied upon his affidavit and made further submissions concerning the delay in making the application. In his affidavit sworn 20 August 2003, attached to the application for extension of time, he states the following:
“1.Claims were made about owing money (amount unclear) and that the place is mortgaged.
2.Therefore I failed to attend the Court believing these court claims to be untrue. I require an extension of time for a review. I’m on full-time study.”
Before the Court this day he indicated that although he had received by way of service, in accordance with the affidavit of service, the relevant documents, now received as part of exhibit R1 and although he had received, in particular, the sequestration order dated 10 July 2003, some four days after that date he had been very busy and had been involved in a computer course.
Applying the normal principles that would apply in relation to an application for extension of time, in my view the material before the Court is not material of a kind which would persuade the Court to grant an extension of time. I am not satisfied that there is a proper basis upon which it could be said that an extension of time should be granted. There has not been cogent evidence placed before this Court which would permit this Court, in my view, to exercise its discretion to in fact extend time.
Where a sequestration order has been made, the consequences which flow from that sequestration order involve the appointment of a trustee and incurring of expense. The time limit, in my view, of 21 days is sufficient in normal circumstances and in the present case to enable an applicant to make an application for review.
In the event, however, that I am wrong in relation to my assessment of the application for extension of time, it is also relevant, in my view, even if I were to find that there was some merit in the application for extension of time, to consider in general terms the merits of the application for review.
In relation to the issue of whether a sequestration order ought to be made and whether or not the application for review ought to be dismissed, Mr Rolls had indicated a degree of what I take to be confusion as to the formalities in relation to a sequestration order and had otherwise indicated a preparedness to obtain certain funds, and indeed, in open Court had made an offer to try and resolve the matter by payment of twice the amount claimed and costs. I endeavoured to give the parties an opportunity to perhaps consider having further discussions. Those discussions may well take place between Mr Rolls and the trustee, who is now properly appointed.
Apart from that material, the affidavit material - apart from those submissions, the applicant in this application for review otherwise relied upon a further affidavit sworn 20 August 2003. In that affidavit he states:
“ My situation is I did not realise what all this was about. Someone was ringing up my sister and husband claiming they were owed money (amount unknown at this stage). Other claims about mortgage on property.”
Having regard to the affidavit material which is included in what is now exhibit R1 and having regard to the updated affidavit material to the extent that I am required on a hearing de novo, it is my view that there is no proper basis upon which it could be said that the application for review can be sustained. I am satisfied on all the material that it was appropriate for a sequestration order to have been made. I am satisfied also on the material that there is no merit in this application for review on the material before me.
Hence, even if I were minded to grant an extension of time in this matter, I do not regard the application for review as having any merit. In all the circumstances, having regard to those findings, it is my view that the appropriate order is that the application for extension of time be refused.
The orders of the Court are:
(1)The Application for extension of time filed 22 August 2003 is dismissed.
(2)The costs of and incidental to the application be paid out of the estate of Patricia Miller with such priority as would normally apply pursuant to s.109 of the Bankruptcy Act.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 25 September 2003