Satchithanantham v Zeaiter Corporate Holdings Pty Ltd - [2010] FMCA 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SATCHITHANANTHAM v ZEAITER CORPORATE HOLDINGS PTY LTD

[2010] FMCA 393

BANKRUPTCY – Bankruptcy notice – deemed service under s.309 order – District Court judgment based on registration of NSW Administrative Decisions Tribunal order – challenges pending in Supreme and District Courts and the ADT – no prospects of success – no stay on execution and no prospects of a stay – adjournment and extension of time for compliance refused – application dismissed.

Administrative Decisions Tribunal Act 1997 (NSW), ss.82, 119
Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41(6A)(a), 41(6A)(b), 309, 309(2)
Bankruptcy Regulations 1996 (Cth), regs.16.01(1)(a), 16.01(2)(a)
Federal Magistrates Act 1999 (Cth), s.104(3)
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth)

Burns v AMP Finance Limited [2004] FCA 1094
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Cleary Bros (Bombo) Pty Ltd v Ibrahim [2009] FMCA 622
Clyne v Deputy Commissioner of Taxation (Lockhart J, 13 August 1982)
Coshott v Barry (2009) 7 ABC(NS) 489
Glew v Harrowell of Hunt & Hunt Lawyers(2003) 198 ALR 331, [2003] FCA 373
Mejias v Federal Express (Australia) Pty Ltd [2007] FMCA 1817
Re Darby; Ex parte Pacific Publications Pty Ltd (Sundberg J, 9 November 1995)
Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd (No 2) (Hoeben J, unpublished, 30 July 2008)
Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 411
Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD) [2009] NSWADTAP 53
Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107
Streimer v Tamas(1981) 37 ALR 211
Vincent v State Bank of NSW (Foster J, 3 November 1995)
Vok & Anor v Madden [2008] FMCA 1275
Wren v Mahony (1972) 126 CLR 212
Zeaiter Corporate Holdings Pty Ltd v Satchithanantham [2008] NSWADT 165

Applicant:

HEMALATHASOTHY RANJI SATCHITHANANTHAM

Respondent:

ZEAITER CORPORATE HOLDINGS
PTY LTD ACN 085 604 191

File Number:

SYG 882 of 2010

Judgment of:

Smith FM

Hearing date:

3 June 2010

Delivered at:

Sydney

Delivered on:

3 June 2010

REPRESENTATION

Representing the Applicant:

Mr T Satchithanantham

Counsel for the Respondent:

Mr D Edwards

Solicitors for the Respondent:

Thurlow Fisher Lawyers

ORDERS

The application is dismissed.
The applicant must pay the costs of the respondent as agreed or taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 882 of 2010

HEMALATHASOTHY RANJI SATCHITHANANTHAM

Applicant

And

ZEAITER CORPORATE HOLDINGS PTY LTD
ACN 085 604 191

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Mrs Satchithanantham received on or about 4 April 2010 a copy of a bankruptcy notice served by Zeaiter Corporate Holdings Pty Ltd (“Zeaiter”). She applies to the Court to set aside the bankruptcy notice. Alternatively, she applies to adjourn the hearing of her application and to extend time for compliance with the notice until various pieces of litigation are concluded. In support of her application, she also seeks an order that I should review a decision of a Registrar made under s.309(2) of the Bankruptcy Act 1966 (Cth) allowing substituted service of the bankruptcy notice, and set it aside under s.104(3) of the Federal Magistrates Act 1999 (Cth).
Mrs Satchithanantham’s application also seeks other relief, including setting aside or intervening in past and current proceedings in the Administrative Decisions Tribunal of New South Wales and possibly also in the Supreme Court of New South Wales. But plainly, this Court has no jurisdiction to give any relief of that nature.
Her application has been prepared and presented on her behalf by her husband, as have all the earlier and anticipated proceedings involving Zeaiter to which I shall refer below. It is clear from the litigation history of Mr and Mrs Satchithanantham with Zeaiter and with other persons, that Mr Satchithanantham is a very frequent litigator in many Courts. I have myself previously published three judgments in bankruptcy proceedings involving Mr Satchithanantham. However, the circumstances of Mr Satchithanantham’s own bankruptcy and his litigation involving other persons have no bearing on the present matter, and do not, in my opinion, require me to disqualify myself from deciding the present application of Mrs Satchithanantham.
The bankruptcy notice was issued on 2 February 2010 by the Official Receiver, in a form which required Mrs Satchithanantham to pay to Zeaiter a debt of $71,053.11 “within 21 days after service on you of this Bankruptcy Notice”. It attached a judgment of the District Court of New South Wales upon which the debt was based, and calculations explaining an added amount of interest on the judgment debt. The judgment of the District Court was made and entered on 9 December 2009, and stated: “Pursuant to section 82 of the Administrative Decisions Tribunal Act 1997 judgment for the Plaintiff against the Defendant in the sum of $70,187.78”.
As the terms of the order show, the judgment was made upon registration of an order given by the ADT, which was necessary to allow it to be enforced under processes of the District Court and also pursuant to the Bankruptcy Act (see Mejias v Federal Express (Australia) Pty Ltd [2007] FMCA 1817 at [14]). The proceedings were ex parte, and Mrs Satchithanantham necessarily did not have any opportunity in the District Court to dispute the registration of the ADT order, nor to raise any substantial defence or cross‑claim in relation to her underlying disputes with Zeaiter.
Section 82 of the Administrative Decisions Tribunal Act 1997 (NSW), provides for the Tribunal’s registrar to issue certificates of “any amount ordered to be paid by the Tribunal” for the purposes of the recovery of those amounts. There is in evidence a certificate which appears to comply with that provision, issued on 27 November 2009, certifying that the ADT made an order on 10 June 2008 that Mrs Satchithanantham pay to Zeaiter “the sum of $70,187.78, comprising (a) a principal sum of $52,330.01 and (b) interest amounting to $17,857.77”. The District Court judgment appears to have been regularly entered, and is sufficient to support the present bankruptcy notice.
There is also in evidence before me the statement of reasons of the ADT explaining the making of its order (see Zeaiter Corporate Holdings Pty Ltd v Satchithanantham [2008] NSWADT 165). It completed contested proceedings conducted over many years, including numerous interlocutory skirmishes in the Tribunal and the Supreme Court. The ADT was constituted by Chesterman ADCJ and two advisory non‑judicial members, who conducted a hearing over four days in September and October 2007.
The ADT order was then subject to protracted appellate proceedings before Zeaiter attempted to enforce it. In particular, Mrs Satchithanantham challenged the findings at first instance both in point of law and on their merits before an Appeal Panel of the ADT. The Panel was constituted with the President of the ADT, O’Connor DCJ, sitting with a judicial member and a non‑judicial member. They dismissed the appeal with costs, in a decision published on 25 September 2009 (see Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD) [2009] NSWADTAP 53). It is apparent from the ADT judgments that the factual issues were fully explored at first instance and on appeal.
The circumstances giving rise to the judgment debt are explained in the judgments and I shall not attempt to detail them. In brief, Zeaiter was the landlord, and Mrs Satchithanantham the sole tenant, under a retail lease of first floor premises at 53 Station Street, Wentworthville. Another lease concerning the ground floor was entered into between Zeaiter and Mr and Mrs Satchithanantham’s company, called Satchi & Satchi Australia Pty Ltd, and extensive litigation has occurred and is still on foot in relation to that lease. Mr Satchithanantham’s submissions at times refer to this litigation, but it concerns different premises, different parties, and different issues.
In relation to the upstairs lease Mrs Satchithanantham occupied the premises for a period in 2004, before Zeaiter took possession on the ground of defaults in rent payments. The litigation in the ADT concerned this action, and essentially turned upon a dispute whether the agreed rent was $1100 per week or per month. On the analysis provided in the Appeal Panel’s decision, which I can find no reason to doubt on the material before me, this dispute arose because Zeaiter’s solicitor mistakenly presented draft documents referring to this amount as a monthly rent. This was later corrected, and it seems that the amount was shown as a weekly rent in the lease which was registered. However, Mrs Satchithanantham’s case presented by Mr Satchithanantham built upon the solicitor’s initial mistake, to contend that she was not in default, was not liable for the arrears and damages claimed by Zeaiter, and should herself recover substantial damages for various causes of action.
After closely analysing the evidence and the reasoning of the ADT at first instance, the Appeal Panel explained its general acceptance of Zeaiter’s claims in the following two paragraphs:
43The Tribunal, in effect, accepted that the gap in Mr Khoury’s note as to the time period to which the ‘$1100 plus GST’ attached was a time period of a week not a month, and that the documents generated by Olliffe & Co filled the gap in incorrectly when they treated the amount as a monthly amount. The Draft Lease did not correspond with the true position as to the meeting of the minds (or ‘consensus’) of the contracting parties as to rent.
…
77The only factual matter that assisted Mrs Satchi in resisting the debt claim made by Zeaiter was the note of the agreed rent made by the real estate agent. This was corrected by the agent’s client and by the solicitor for that client. The instrument of lease presented for execution stated the rent as contemplated by Zeaiter. Mrs Satchi entered into the lease, no doubt in line with the instructions of Mr Satchi. The Satchis had a solicitor acting for them during this period, and no objection was raised via the solicitor. The Tribunal dealt with the question of whether the agent’s note, or the registered lease, reflected the true position. In our view, its treatment of that subject was clear and convincing. This was a commercial dealing of some scale, involving for the Satchis, once the rents for the two floors were combined, a commitment of the order of $120,000 per year. In our view, it defies logic that a lessee would lightly commit to payment of rent in an amount that exceeded what they believed to be the true rent by an amount of about $40,000 per year, execute a formal lease to that effect with a solicitor assisting, and then contend that the lessee was not bound by the lease as executed.
The Appeal Panel described the proceedings before it as “an unmeritorious appeal” and exercised in favour of Zeaiter its special power to award costs where “it is fair to do so”.
The evidence before the ADT posed issues of credibility which were resolved in favour of Zeaiter at first instance. The reasons for rejecting Mr Satchithanantham’s evidence were the subject of close examination by the Appeal Panel. It followed established principles in relation to appeals from findings of fact based on credibility, when rejecting all the grounds of appeal argued by Mr Satchithanantham on behalf of Mrs Satchithanantham. It appears to me that implicitly, if not explicitly, the Appeal Panel dismissed the appeal on all grounds, both in point of law and on the merits of the matter.
Following its success before the Appeal Panel, Zeaiter obtained the certificate of the ADT’s substantive order made at first instance, registered the order in the District Court, and obtained the issue of the Bankruptcy Notice which is the subject matter of the present application. It then attempted to serve the notice on Mrs Satchithanantham, and for this purpose it made an ex parte application to this Court on 26 February 2010 for an order under s.309(2) of the Bankruptcy Act in relation to the “manner of giving or serving the notice”.
The affidavits in support of the s.309 application showed that attempts to serve the bankruptcy notice personally on Mrs Satchithanantham on 4 and 5 February 2010 were met with inconsistent statements by other people as to whether she was living in the home at Westmead which, in all the proceedings in the ADT, had been given as her address for service. The process server was ultimately told: “she doesn’t live here”, and no further information was provided. The affidavits presented evidence confirming that Mrs Satchithanantham had repeatedly given that address as her address for service in the ADT proceedings, including in an application recently filed in the ADT by her on 5 March 2010.
Registrar Hannigan thought it appropriate to exercise the Court’s discretion, and made the following orders on 18 March 2010, without recording her reasons:
1.Service of Bankruptcy Notice No. NN 352 of 2010 issued on 2 February 2010 and addressed to HEMALATHASOTHY RANJINI SATCHITHANANTHAM (the respondent) together with a sealed copy of this order (and any extension of Bankruptcy Notice) may be effected by the following means occurring on or before 1 April 2010
(a)By sending by pre‑paid ordinary post addressed to the respondent at [the Westmead address];
And also
(b)By handing to any person apparently over the age of 16 years but, if this is not possible, by leaving in the letter box or affixing to the front door in a sealed envelope addressed to the Respondent at [the Westmead address].
2.Service in accordance with this order shall be deemed good and sufficient service of the Bankruptcy Notice upon the respondent.
3.The Bankruptcy Notice shall be deemed to be served on the respondent on 1 April 2010.
4.A copy of the Bankruptcy Notice to be served pursuant to para. 1 of this order is to be annexed to any affidavit proving that service.
5.The copies of the Bankruptcy Notice for service and proof of service all be amended by deleting the words in paragraph 3 of this notice “after service on you of this Bankruptcy Notice” and substituting “after 1 April 2010”.
6.Costs of this application be reserved for purposes of any creditors petition based on this Bankruptcy Notice.
(emphasis in original)
In my opinion, the evidence now before me establishes that compliance with the Registrar’s orders sufficiently occurred. In relation to paragraph 1(b) of Registrar Hannigan’s order, a process server attached a copy of the bankruptcy notice and the Court’s order for substituted service to “the front door of the usual place of abode of the defendant at [the Westmead address]” on 23 March 2010. The copy of the document which he said he attached to the door shows that it had been altered by handwriting in relation to the time for compliance, so that the words “after service on you of this Bankruptcy Notice” were struck out, and the words “after 1 April 2010” were inserted. In my opinion, these alterations made abundantly clear that the bankruptcy notice demanded payment of the debt within 21 days after 1 April 2010, that is, on or before 22 April 2010. The accompanying Court order would have confirmed this requirement, and would have confirmed that the handwritten amendment was made pursuant to a Court order. I do not consider that the documents served by attachment to Mrs Satchithanantham’s front door reveal any uncertainties which might give rise to invalid service of an amended bankruptcy notice, as discussed in Clyne v Deputy Commissioner of Taxation (Lockhart J, 13 August 1982), Vincent v State Bank of NSW (Foster J, 3 November 1995), Re Darby; Ex parte Pacific Publications Pty Ltd (Sundberg J, 9 November 1995); and Vok & Anor v Madden [2008] FMCA 1275 at [40]).
Another affidavit of service purporting to address paragraph 1(a) of Registrar Hannigan’s order was sworn by Mr Edwards, the solicitor for Zeaiter, on 22 March 2010. He deposed to sending a copy of the bankruptcy notice and the Court order “by pre‑paid ordinary post addressed to the Debtor” at the Westmead address on 22 March 2010. The copy of the bankruptcy notice attached to his affidavit did not have the amendment to paragraph 3 required by paragraph 5 of the Registrar’s order. However, Mr Edward gave oral evidence that he had mistakenly attached a copy of the unamended document to his affidavit. I accept his evidence that, in fact, he posted a duly amended copy of the bankruptcy notice.
The confidence with which I draw the conclusion that Mrs Satchithanantham was served in accordance with the Registrar’s order is assisted by the fact that Mrs Satchithanantham’s affidavit in support of the present application attaches as the bankruptcy notice which she received, a bankruptcy notice with the handwritten amendments upon it. Her evidence does not clarify whether this was a document received by post or attached to her front door or both. However, she does not deny receiving a duly amended bankruptcy notice in the modes directed by the Registrar, and neither she nor her husband contend that she, or anyone else at the Westmead address, received an unamended copy of the bankruptcy notice.
Her affidavit of 21 April 2010 says:
On or around 4 April 2010, my husband Thambiapah Satchithanantham told me that the respondent left a document in my house, which contains a bankruptcy notice and an order made by this court on 18/3/10. The true copies of the documents are exhibited herewith as Exhibit – “A”.
Mr Satchithanantham’s affidavit of 13 May 2010 says in paragraph 6:
My wife, the applicant has been away from the residence since 29/12/2009, as to the homicide occurred in our home as in the public records and the house was rented from 1/2/10. The bankruptcy notice was given to me by one of the tenant who lived there on 3/4/10 and I passed to that notice to my wife on 4/4/10, as referred in the paragraph 2 of her affidavit of 21/4/10.
This evidence contains some inadequacies, but neither Mr nor Mrs Satchithanantham were cross‑examined, and I accept that Mrs Satchithanantham did not actually receive the bankruptcy notice until on or about 4 April 2010. She might therefore have had only 17 days to comply with the bankruptcy notice before committing an act of bankruptcy on 22 April 2010. However, Registrar Hannigan’s order did not require actual service to be effected before 1 April 2010, since it purported to establish conclusively that “the Bankruptcy Notice shall be deemed to be served on the respondent on 1 April 2010” if its requirements as to posting and “affixing to the front door” were met before that date. A date of actual receipt subsequent to 1 April 2010, therefore, had no effect to alter 22 April 2010 as the expiry date for compliance with the bankruptcy notice, once I am satisfied, as I am, that service was effected in accordance with the Registrar’s order.
The inclusion of a conclusive date of service in orders under s.309(2) for service of bankruptcy notices has been a common occurrence in bankruptcy practice in the Federal Court for many years, and I am unaware of any judgment in which this has been judicially considered. No submissions challenging Registrar Hannigan’s power to make order 3 were made to me, and I am not persuaded to find in the present case that this power is not conferred by the section. Powers generally available under s.309(2) were undoubtedly available in the present case, and I am not persuaded that the Registrar made any error when exercising them in the circumstances shown in the evidence which was before her.

Nor am I persuaded upon all the evidence now before me that I should set aside her orders in exercise of my de novo powers on review under s.104(3) of the Federal Magistrates Act. There may be reasons to query whether the Registrars should routinely make orders in the above terms in relation to service by post of bankruptcy notices, since service by post with a non‑conclusive presumption of delivery is now provided under Bankruptcy Regulations 16.01(1)(a) and (2)(a) (see Skalkos v T & S Recoveries Pty Ltd (2004) 141 FCR 107 at [28]‑[31], and Cleary Bros (Bombo) Pty Ltd v Ibrahim [2009] FMCA 622). However, the availability to Zeaiter of modes of service under the Regulations did not render unsuitable in the circumstances of the present case the exercise of powers under s.309. In particular, the unsatisfactory evidence before the Registrar, and now before the Court, as to Mrs Satchithanantham’s use of the Westmead address as her address for service of official and court documents made it appropriate, in my opinion, for a date for compliance with the bankruptcy notice to be conclusively established under a Court order. In this respect, I note that Mrs Satchithanantham continued to use that address as her address for service in the present proceedings, and has given this as her address when swearing her affidavit. I am not persuaded that, with hindsight, the Registrar’s order is shown to have operated so as to result in such injustice or other hardship which would make it appropriate for me to set aside that order, and to set aside the bankruptcy notice for that reason. For all these reasons, I would refuse the application under s.104(3).
Mrs Satchithanantham’s application to the Court to set aside the bankruptcy notice was, as I have noted, filed on 22 April 2010. This was the last day for compliance in accordance with its terms. The Court therefore had jurisdiction to extend the time for compliance pursuant to s.41(6A)(b) of the Bankruptcy Act. Although the application was somewhat obscure as to whether this power was invoked, a generous reading of ‘interim orders’ 2 and 3 discloses such an application. They sought:
2.Bankruptcy notice NN 352/10 left in the premises at [the Westmead address] be stayed until further order of this court.
3Applicant seeks extension of time to comply with this Bankruptcy Notice, until the final determination of the following matters are listed for directions, which are current and the counter claim made against the respondent exceeds over $2 Million, at the date of this application, as to my affidavit evidence filed today with this application, as referred in the paragraph 15 of my affidavit of 21/4/10.
However, no order extending time for compliance was made by a Registrar on 22 April 2010, nor by a Registrar or myself at the first court date, when I listed the application for hearing today. My orders noted the presence of an application for extension of time, and listed it for hearing today also.
I accept that I would have power to extend time nunc pro tunc from 22 April 2010, even after the prima facie commission of an act of bankruptcy, if I am satisfied that this would be an appropriate exercise of discretion. Such a power, where the precondition in s.41(6A)(b) is satisfied, has been accepted in many judgments, based upon principles applied in Streimer v Tamas(1981) 37 ALR 211. Whether I should exercise that discretion is something which I shall address in this judgment.
A recent judgment of Edmonds J in Coshott v Barry (2009) 7 ABC(NS) 489 suggests at [20]‑[21] that the Court would not have power to extend time for compliance under s.41(6A)(b) once it has refused an application to set aside the bankruptcy notice. It therefore would be necessary for Mrs Satchithanantham to persuade me to adjourn her present application before she could obtain the benefit of any extension of time under this provision beyond today. For reasons which I shall explain below, I am not persuaded either to adjourn the present application so as to allow a future extension of time under this provision, nor even to extend time nunc pro tunc from 22 April 2010 until today.
In Coshott v Barry, Edmonds J also addressed the alternative power to extend time under s.41(6A)(a) where “before the expiration of the time fixed for compliance with the requirements … proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor”. Such an application in relation to the District Court order had not been filed by Mrs Satchithanantham on or before 22 April 2010, and the filing of one this morning is too late to allow the Court to exercise that power unless it is also persuaded to exercise power under s.41(6A)(b).
Mrs Satchithanantham’s arguments presented by Mr Satchithanantham in support of setting aside the bankruptcy notice, or for adjourning the application and extending time for compliance with the notice, were most unclearly presented in writing and orally.
His first point today was that the bankruptcy notice should be set aside by reason of the fact that it carried amendments made pursuant to orders of Registrar Hannigan which had been made ex parte without notice to Mrs Satchithanantham. The lack of merit in this contention must appear from its terms, once it is appreciated that the application was necessarily made ex parte to Registrar Hannigan, in circumstances where attempts at personal service had failed, and the Court was being asked to allow substituted service by post. I am not persuaded that the absence of service of the application for substituted service provides any reason for setting aside the bankruptcy notice, nor for setting aside the substituted service order.
As I have explained above, I am not persuaded that I should set aside the substituted service order, and for that reason set aside the bankruptcy notice, based on the evidence that, in fact, the notice was not actually received by Mrs Satchithanantham until 4 April 2010. It is clear that the notice did come to her attention in time for her to apply to the Court before its expiry. It is clear that the address at which the notice was served was at that time, and still is, Mrs Satchithanantham’s nominated address for service of court documents. I am unable to identify any ground for setting aside the bankruptcy notice which, as I have found, was duly served in accordance with an order obtained under s.309(2) of the Bankruptcy Act.
Mr Satchithanantham also argued, arising from the substituted service order, that it required annotation of the amendments of paragraph 3 of the notice to be made by the Official Receiver, and for this to appear on the face of the documents served on Mrs Satchithanantham. He did not refer me to any provision of the Bankruptcy Act or Regulations to this effect, and I am unaware of any. In my opinion, the terms of the Court’s order in relation to service of an amended bankruptcy notice did not require that procedure, and the amendments were appropriately made by the solicitor for the creditor in the manner shown on the documents before the Court. It may have been desirable for a note to have been added to the amendment, expressly indicating the source of authority to make the amendment. However, in my opinion, and applying the authorities I have cited above, the absence of such a note would not have caused confusion to the recipient of the amended bankruptcy notice, in circumstances where the amendments were to clear effect, and were consistent with and explained by the Court order which accompanied service of the notice.
No other possible defect in relation to the form or service of the bankruptcy notice is raised in the material before me, nor pointed to in any arguments made on behalf of Mrs Satchithanantham.
Mr Satchithanantham did, however, point to three pending proceedings to establish grounds for adjourning the application so as to allow time for compliance to be extended. His submissions might also appear to have pointed to these proceedings as constituting a “counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt” within s.40(1)(g) of the Bankruptcy Act, the existence of which would allow the Court to set aside the bankruptcy notice, or as evidence which would persuade me to ‘go behind’ the ADT order and find that no debt existed ‘in truth and reality’.
The first of these pending proceedings is an application filed in the Administrative Decisions Tribunal on 13 May 2010, which has a file number which appears to be the pending ADT proceedings in relation to the ground floor tenancy. As I have noted, the tenant was Mr and Mrs Satchithanantham’s company, and not Mrs Satchithanantham personally. However, the terms of the pending application and the material filed in support of it, also invite the ADT to revisit the first floor tenancy matter, which gave rise to the present judgment debt relied upon by Zeaiter. It seeks the following orders:
1.Set aside the orders 1 & 2 of the certificate issues by the registrar on 27 November 2009 in this matter.
2.~~Applicant~~ Respondent be awarded costs and damages as to the cross claim made against the ~~respondent~~ Applicant in the matters 055131 and 075034 and subsequent appeal panel matters involved thereafter in the tribunal.
3.Stay of the enforcement in the District court, Sydney proceedings no: 5473/09 until final determination of this application.
4.Cost.
The second of the pending proceedings shares a similarly confused understanding of the appropriate procedures for seeking such orders. It is a document filed in the Supreme Court of New South Wales in proceedings 30004 of 2008 as an “amended notice of motion” which is dated 21 May 2010. This seeks the following orders:
1.The Court make directions for a hearing of this the matter for summary judgment be entered against the defendant, as the court deems fit.
2.The hearing be included all of the matters before this court commencing from 21 December 2007 until to the hearing date of this matter and all of the matters conducted in the Administrative decisions tribunal & Appeal panel below from 4 February 2008 until hearing of this matter which includes the following files viz: 055131, 075031, 075034, 079043, 085133, 089025, 089048, 099022 and 109016.
3.Court direct the Administrative decisions tribunal below to transfer the files as referred in the order – 2 above, prior to the hearing of this matter.
4.Declaration that the registered leases AA 628205C and AA 628206 A in the premise at 53 Station Street, Wentworthville NSW F/I – 13602 – 147 be null and void from the date of registration of such leases.
5.Defendant surrender back the lease premises to the first plaintiff located at 2/53 Station Street, Wentworthville NSW 2145, as it was on 2 August 2008 within 28 days of this order with the terms of the lease are as part of the first floor lease [see order – 6 sought below] upon which, when the rent increased on 21/1/2004.
6.Defendant surrender back the lease premises to the second plaintiff at first floor of 53 Station Street, Wentworthville NSW 2145, in accordance with the terms of the lease executed by the lessee on 6 January 2004, for the remaining period of the lease from 12/7/04, which was accepted by the defendant’s legal representative on 13/2/2004 and the second plaintiff took the possession of the said property on 15/1/2004 and commenced & carried out their activities and business until 12/7/2004, when the defendant locked up the said premises unlawfully, within 28 days of this order.
7.Any failure of complying the orders 1 5 & 2 6 sought above within the time by the defendant, the Sheriff office of NSW is given order to evict the current occupants in the said premises and to hand over the premises to the plaintiffs.
8.Defendant pay A$7 million [Dollars Seven million] to the plaintiff as monitory compensation a to the losses and damages suffered from 21 January 2004 and ongoing.
9.Defendant pay costs of the plaintiff from 21/1/2004 on indemnity basis.
10.Defendant pay all the claims made by the National Australia Bank in the matter 15249/05, against the second plaintiff as to the notice served by the plaintiff in 2008, which were copied to the Chief Justice of this court and all other parties, as in the records. [see annexure “A”] – 6/3/08.
11.Stay of all the activities, leasing, trading at 2/53 Station Street Wentworthville NSW, after the notification to the Defendant on 7/4/10 and Ray White Parramatta; until further order of this court.
11.[sic]The eviction order served by the sheriff office on 11/5/10 to the second plaintiff be stayed until the order – 9 10 sought is complied with & satisfied. [See annexure – B]
12.The ADT Appeal Panel matters: 089025, 089048, 099022 and 109016 with cost orders hearing dismissed by the Appeal Panel be heard & determined by this court by way of “Appeal”.
12. 13 Further orders the court deems fit.
The proceedings in which this interlocutory application has been brought appear to be the proceedings in which Hoeben J gave two judgments during 2008 (see Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 411, and Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd (No 2) unpublished, 30 July 2008). As his Honour’s judgments detail, Hoeben J addressed and rejected numerous and confusing applications made by Mr Satchithanantham on behalf of himself, his wife and his company in relation to both tenancy disputes concerning the premises at Wentworthville and both sets of proceedings then pending in the ADT.
Mr Satchithanantham now appears to believe that his present Supreme Court motion amounts to, or includes, an appeal from the Administrative Decisions Tribunal Appeal Panel decision which upheld the ADT order giving rise to the present judgment debt. He referred, in a manner which I could not understand, to dealings with the registries of the Court of Appeal or the Supreme Court in this respect. I suspect that it has been pointed out to him that rights of appeal are limited to questions of law under s.119 of the ADT Act, and that the presence of O’Connor DCJ on the Appeal Panel requires that any appeal must be brought in the Court of Appeal. However, there is no evidence that he has filed any such appeal. Moreover, there is also absent from any of the documents he presents to this Court, and from his evidence and submissions, any suggestion that the Supreme Court, including the Court of Appeal, has made an order in the nature of a stay on execution or enforcement of the ADT judgment, as now registered in the District Court.
The third pending proceeding relied upon by Mr Satchithanantham was commenced today, it seems, by filing documents in the District Court shortly before the attendance of Mr and Mrs Satchithanantham before me. This is a notice of motion filed in the District Court proceeding in which the ADT order was registered, which seeks:
(A)Interim orders sought:
(1)Court grants temporary stay of the enforcement of the judgment entered on 22/1/10 in this matter, until hearing of this application by this court.
(B)Final orders sought:
(1)Stay of the enforcement of the judgment entered by this court on 22/1/10, until the Administrative Decisions Tribunal [ADT] hear & determined the Applicant’s application filed in the ADT on 13/5/10 to set aside certificate issued by the ADT on 27/11/09.
(2)Any other orders the court deems fit.
In this application, it is suggested that a ground for a stay arises by reason of the lack of notice of the application to register the order. The affidavit in support also attaches the pending application in the ADT which I have referred to above, and points to hardships facing Mr and Mrs Satchithanantham in relation to repossession of their home arising from proceedings which did not involve Zeaiter. In effect, the application invites the District Court to re‑examine the merits of the decisions of the ADT, as a ground for declining to allow its order to be enforced. Mr Satchithanantham tells me that the registry clerks told him that a registrar will look at his papers in chambers and, at some point today, make a decision on whether they will make an ex parte order staying enforcement of the judgment. It is clear that he has not yet obtained a stay order from any judicial officer of the District Court. prior to my giving judgment. In effect, Mr Satchithanantham submits that I should, at least, adjourn today’s proceedings, to await the outcome of his application filed this morning.
I have read all the documents concerning these three proceedings which are relied upon by Mr Satchithanantham, and have tried to understand all of his arguments. I found his documents and submissions largely incomprehensible. I cannot find in them any prospect that either the Supreme Court, the District Court, or the Administrative Decisions Tribunal is likely to make any order staying execution of this judgment debt. My firm opinion is that they are all hopeless applications, if not abuses of process, and that this is manifest from even a superficial consideration of their terms, the documents filed in their support, and the circumstances in which the three proceedings have been commenced. I consider that they are likely to be disposed of by each of those bodies upon that ground.
For that reason, I am unpersuaded that any of the proceedings can be characterised as a cross‑claim etc. in terms of s.40(1)(g) according to the well known tests collected by Lindgren J in Glew v Harrowell of Hunt & Hunt Lawyers(2003) 198 ALR 331, [2003] FCA 373. I am also unpersuaded that they provide any reason for a bankruptcy court to contemplate ‘going behind’ orders of the ADT or the order of the District Court, so as to decide for itself whether ‘in truth and reality’ Mrs Satchithanantham should have been found liable to Zeaiter (cf Wren v Mahony (1972) 126 CLR 212 at 224‑225). This is particularly so, in a situation where the ADT order was made after fully contested proceedings at first instance and on appeal, and was based upon issues of credibility.
In my opinion, these conclusions, and the circumstances of all the litigation preceding the registration of the ADT debt, should cause this Court to decline to adjourn the present application, and to bring it to a conclusion today. They also cause me to decline to make any order extending time for compliance with the bankruptcy notice.
When arriving at that conclusion, I have considered and applied principles in relation to applications to extend time under bankruptcy notices pending the outcome of appeal or other proceedings in other courts, which were discussed notably by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264, Branson J in Burns v AMP Finance Limited [2004] FCA 1094 and Edmonds J, recently in Coshott (cited above). Their Honours make the point that usually considerable weight should be given to the circumstance that no stay of enforcement has been granted in the appropriate forum for an appeal.
In Coshott (supra) Edmonds J was prepared to extend time, in the circumstances summarised at [44]:
44The consideration which I find most telling in favour of exercising my discretion to further extend the time for compliance with the Bankruptcy Notice is that the appeal against the cost assessor’s determination was instituted on 1 July 2009, over three months before service of the Bankruptcy Notice. That fact alone informs one that the proceeding is not brought to frustrate the proceeding commenced under the Act by the service of the Bankruptcy Notice and there is no evidence to suggest, nor was it suggested, that there are circumstances now extant which would otherwise attract the operation of s 41(6C).

However, as I have noted above, the power under s.41(6A)(a) is absent in the present case, at least unless I am prepared to extend time nunc pro tunc until today under s.41(6A)(b). Moreover, in the present circumstance, it appears to me irresistible that the only application for a stay which has been presented with any focus, being the application made to the District Court this morning, was one: “brought to frustrate the proceedings commenced under the [Bankruptcy] Act by the service of the Bankruptcy Notice”. In particular, it is significant that Mrs Satchithanantham has not obtained a stay on execution of the ADT orders from the Supreme Court of NSW, which is the only Court with appellate jurisdiction in relation to that Tribunal. This is notwithstanding that she has had several months to seek such orders. I can see no prospect of success for the District Court application, and would decline to extend time for compliance beyond 22 April 2010 and to adjourn today’s hearing even for a short time.
When deciding to refuse all elements of Mrs Satchithanantham’s application today, I have given weight to the fact that its dismissal will have no effect on her status under the Bankruptcy Act. It will merely provide her creditors with an act of bankruptcy upon which, if they so chose, they can rely for the purposes of a creditor’s petition. As has been emphasised in many cases, if a creditor’s petition eventuates, it will be open to Mrs Satchithanantham to oppose the petition upon broader discretionary grounds than arise in relation to an application to set aside a bankruptcy notice.
In relation to the bankruptcy notice, in my opinion, the relevant considerations are firmly in favour of resolving the present application and confirming the act of bankruptcy occurring on 22 April 2010, taking into account the interests of the present creditor, and also of all of Mrs Satchithanantham’s creditors generally.
I consider that the appropriate order is to dismiss the application brought by Mrs Satchithanantham, including all her applications for interim orders.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 23 June 2010