Sim v Sampson (No 2)

[2015] FCA 1423

FEDERAL COURT OF AUSTRALIA

Sim v Sampson (No 2) [2015] FCA 1423

Citation:	Sim v Sampson (No 2) [2015] FCA 1423
On Appeal:	Application for extension of time: David Henry Sampson as Trustee of the bankrupt estate of Andrew Ian Sim v Andrew Ian Sim [2015] FCCA 2931
Parties:	ANDREW IAN SIM v DAVID HENRY SAMPSON
File number:	NSD 1256 of 2015
Judge:	MARKOVIC J
Date of judgment:	11 December 2015
Date of hearing:	11 December 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	The Applicant did not appear
Solicitor for the Respondent:	Mr N Dale of Gillis Delaney Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1256 of 2015

BETWEEN:	ANDREW IAN SIM Applicant
AND:	DAVID HENRY SAMPSON Respondent

JUDGE:	MARKOVIC J
DATE OF ORDER:	11 DECEMBER 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Application for Extension of Time filed by the applicant on 21 October 2015 be dismissed.

2.The applicant pay the respondent’s costs of and incidental to the Application for Extension of Time.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1256 of 2015

BETWEEN:	ANDREW IAN SIM Applicant
AND:	DAVID HENRY SAMPSON Respondent

JUDGE:	MARKOVIC J
DATE:	11 DECEMBER 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before me is an application for an extension of time in which to file a notice of appeal.  The application was set down for hearing and the applicant notified of today’s date on 19 November 2015 by email from the Court registry.  The applicant acknowledged receipt of the email on 20 November 2015.  When the matter was called this morning the applicant did not appear.  The matter was called outside the courtroom and there remains to be no appearance by the applicant.  The respondent seeks an order that the application for extension of time filed by the applicant on 21 October 2015 be dismissed. 

2. Having considered the application and the affidavit in support filed by the applicant, sworn 21 October 2015, and in particular the draft notice of appeal which is annexed to that affidavit, I am of the view that the applicant does not provide any acceptable explanation or, indeed, any explanation for the delay in the filing of a notice of appeal.  Further, the draft notice of appeal does not contain any grounds of appeal.  I have also considered the decision of the primary judge.  In my view, there is no error apparent in that decision. 

3. The solicitor for the respondent has submitted to the Court that the property the subject of the orders, which are in turn the subject of the draft notice of appeal, has now been put to public auction and is the subject of a binding contract.  In that respect there is real prejudice to the respondent in connection with the application that the applicant would seek to make.  

4. The solicitor for the respondent also informed me this morning that draft short minutes of order that were provided to the Court at approximately 10.09 am this morning by email were also copied to the applicant.  The applicant has not responded – at least by the time of the respondent’s solicitor departing his office to come to Court – to that email. 

5. In the circumstances I propose to make the orders sought by the respondent as follows:

   (1)The application for extension of time filed by the applicant on 21 October 2015 be dismissed.

   (2)The applicant pay the respondent’s costs of and incidental to the application for extension of time. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate:

Dated:        11 December 2015