Singh v Owners Strata Plan No 11723

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FEDERAL COURT OF AUSTRALIA

Singh v Owners Strata Plan No. 11723 [2012] FCA 538

Citation: Singh v Owners Strata Plan No. 11723 [2012] FCA 538
Parties: JAGJIT SINGH v OWNERS STRATA PLAN NO. 11723
File number(s): NSD 593 of 2012
Judge: GRIFFITHS J
Date of judgment: 24 MAY 2012
Legislation:  Bankruptcy Act 1966 (Cth) s 37, 52, 54
Civil Procedure Act 2005 (NSW) s 140
Federal Court Rules 2011 Rule 36.08
Strata Schemes Management Act 1996 (NSW) s 80, 80D
Strata Schemes Management Regulation 2010 (NSW) reg 15
Cases cited: Burns v AMP Finance Limited (ACN 002 812 704) [2005] FCA 761
Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297
Evans v Heather Thiedeke Group Pty Ltd (unreported, Morling, Hartigan and Lee JJ, 14 August 1989)
Freeman v National Australia Bank Limited [2002] FCA 427
Liprini v Liprini [2010] FCA 1117
Menzies v Paccar Financial Pty Limited (ACN 005 592 049) [2002] FCA 692
Ogle v Tendiris Pty Limited [2007] FCA 1638
Date of hearing: 24 May 2012
Place: Sydney
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 65
Counsel for the Appellant: The Appellant appeared in person
Solicitor for the Respondent: Grace Lawyers Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 593 of 2012
BETWEEN:

JAGJIT SINGH
Appellant
AND:

OWNERS STRATA PLAN NO. 11723
Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

24 MAY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application for interlocutory relief is dismissed.

2.The applicant is to pay the costs of the respondent of and incidental to the application for interlocutory relief. 

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 593 of 2012
BETWEEN:

JAGJIT SINGH
Appellant
AND:

OWNERS STRATA PLAN NO. 11723
Respondent

JUDGE:

GRIFFITHS J

DATE:

24 MAY 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. By interlocutory application filed on 2 May 2012 the applicant seeks an order staying a sequestration order made on 5 April 2012 by Federal Magistrate Smith.  The sequestration order was made on the creditor’s petition of the respondent (the Owners) and was made against the estates of both the applicant, Mr Jagjit Singh, and his wife, Ms Sarbjit Kaur.  The creditor’s petition was based in part on a default judgment given by the Local Court in respect of unpaid levies, interest and costs said to be owed by Mr Singh and Ms Kaur to the Owners in relation to a unit in Harris Park. 

  2. Although the sequestration order was made against the estates of both Mr Singh and Ms Kaur, it appears that only Mr Singh seeks interlocutory relief.  Mr Singh’s interlocutory application came before me as Duty Judge.  Mr Singh represented himself and the respondent was represented by Mr Radman, the respondent’s solicitor. 

  3. A notice of appeal from Smith FM’s judgment and orders was filed on 24 April 2012.  The notice…

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Details
Case
[2012] FCA 538
Decision Date

CaseChat Overview and Summary

In Singh v Owners Strata Plan No 11723, Mr Singh sought to appeal a sequestration order made against him in relation to unpaid strata levies. The application was brought before the Federal Court and the primary issue was whether the court had the jurisdiction to stay the execution of the sequestration order pending the determination of the appeal. The court also needed to consider whether there were any arguable points in the appeal that would justify a stay.

The court considered whether Mr Singh’s grounds of appeal had any rational prospect of success. The court noted that the grounds of appeal largely mirrored those unsuccessfully raised in opposition to the sequestration order. The Federal Magistrate had carefully considered and rejected these grounds, and Mr Singh did not provide any new reasons or evidence to suggest that the Magistrate erred in making the order. The court concluded that there were no arguable points in the appeal that would warrant a stay of the sequestration order.

Based on the reasoning above, the court found that there was no basis to grant an interlocutory stay of the sequestration order. The application for interlocutory relief was dismissed, and Mr Singh was ordered to pay the costs of the respondent.

This case underscores the importance of demonstrating arguable points of appeal and the need for new reasons or evidence to justify a stay of execution of a sequestration order. The court’s decision highlights the limited circumstances in which such stays may be granted.

Orders

Orders of the court

1. The application for interlocutory relief is dismissed.

2. The applicant is to pay the costs of the respondent of and incidental to the application for interlocutory relief.

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

But the power of the Court to entertain a stay application and, if appropriate, grant a stay of a sequestration order also needs to take account of Rule 36.08 of the 2011 Federal Court Rules, which deals specifically with the power to grant a stay where appeal proceedings have been initiated. It provides as follows: 36.08Stay of execution or proceedings under judgment appealed from(1)An appeal does not:(a)operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or(b)invalidate any proceedings already taken.(2)However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceedings until the appeal is heard and determined.(3)An application may be made under subrule (2) even though the Court from which the appeal is brought has previously refused an application of a similar kind. Rule 36.08 is in substantially similar terms to order 52, rule 17 of the previous Rules. There are numerous decisions of the Court to the effect that it has a power under that rule in an appropriate case to stay the execution of a sequestration order pending the determination of an appeal in this Court (see, for example, Coleman v Lazy Days Investments Pty Ltd (1995) 55 FCR 297 at 301-302 per Carr J; Freeman v National Australia Bank Limited [2002] FCA 427 per Spender J; Menzies v Paccar Financial Pty Limited (ACN 005 592 049) [2002] FCA 692 per Ryan J; Ogle v Tendiris Pty Limited [2007] FCA 1638 per Logan J). It is equally well established that, in determining whether or not to grant a stay of proceedings, it is necessary to consider whether there is an arguable point raised by the proposed appeal and whether the balance of convenience favours the granting of a stay. The weighing of the balance of convenience may require consideration to be given to any claims supported by admissible evidence concerning prejudice on the part of both the applicant and the respondent. I will now deal with each of those two matters.DOES MR SINGH HAVE ANY ARGUABLE POINTS IN HIS APPEAL? The first task is to consider whether Mr Singh’s notice of appeal raises any arguable points or, to express that proposition in slightly different terms, whether any of his grounds of appeal have “some rational prospect of success” (see Burns v AMP Finance Limited (ACN 002 812 704) [2005] FCA 761 at [5] per Emmett J). The first thing to note about the notice of appeal is that most, if not all, of the grounds appear to reflect the grounds of opposition unsuccessfully advanced by Mr Singh before Smith FM concerning whether a sequestration order should be made. As noted above, Smith FM had some difficulty comprehending many of the matters raised by Mr Singh. But, doing the best that his Honour could, Smith FM carefully considered Mr Singh’s grounds of opposition and gave reasons for rejecting each of them. Mr Singh’s notice of appeal effectively repeats most if not all of those grounds of opposition which he raised unsuccessfully before Smith FM without indicating why he contends that the Federal Magistrate erred in proceeding to make a sequestration order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.