Federal Circuit and Family Court of Australia
(DIVISION 2)
The Owner - Strata Plan SP22143 v Renet [2022] FedCFamC2G 953
File number(s): CAG 2 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 November 2022 Catchwords: BANKRUPTCY – Application for review of sequestration order made by Registrar on the basis of the debtor not having complied with the requirements of a bankruptcy notice – sequestration order sought/made on the basis of unsatisfied judgment debt – whether creditor has established preconditions to the making of a sequestration order – non-compliance with earlier orders of the Court – hearing de novo – application for review dismissed with costs. Legislation: Bankruptcy Act 1966 (Cth) s. 37, 52(1) - (3)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s.256(1) and (2)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Division 13.2; Division 21.2 “Review of Registrars’ powers”
Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) Division 7.2 “Review of sequestration order”
Cases cited: Bechara v Bates (2021) 286 FCR 166
Clapham v Commonwealth Bank of Australia [2013] FCAFC 84
Hutchings v Australian Securities and Investments Commission [2017] FCA 858
Kimber v Owners of Strata Plan No.48216 (2017) 258 FCR 575
Ling v Enrobook Pty Ltd (1997) 74 FCR 19; (1997) 143 ALR 396
Martin v Commonwealth Bank of Australia (2001) 217 ALR 634
Richmond v BMW Australia Finance Ltd (No.1) [2009] FCAFC 24
Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494
Schepis v Osborne [2015] FCA 192
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 16 September 2022 Date of hearing: 19 August 2022 Place: Canberra Solicitor for the Applicant in the Application for Review Self-represented Solicitor for the Respondent in the Application for Review Baker Deane & Nutt ORDERS
CAG 2 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: THE OWNER - STRATA PLAN SP22143
Applicant
AND: MARK RENET
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
16 November 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Application for Review of the Orders made by a Registrar of this Court on 27 May 2022 that:
(a)a sequestration Order be made against the estate of the Respondent Debtor; and
(b)The Applicant’s costs fixed in the sum of $8,172.47 be paid from the bankrupt estate of the Respondent in accordance with the Bankruptcy Act 1966 (Cth),
is dismissed.
2.The sequestration Order made by a Registrar of this Court on 27 May 2022 is affirmed.
3.The Applicant’s costs of the review fixed in the sum of $5,000.00 be paid from the bankrupt estate of the Respondent in accordance with the Bankruptcy Act 1966 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court…
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- Case
- [2022] FedCFamC2G 953
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Mr Renet's application for review was valid and whether the sequestration order should be set aside or affirmed. The court noted that Mr Renet had not appealed the judgment debt in the Queanbeyan Local Court and had been legally represented during part of the litigation that resulted in the judgment debt. Furthermore, the court observed that Mr Renet had not provided any evidence to support his claim that the outstanding debt had been settled. The court also considered the Full Court decision in Bechara v Bates, which emphasised the importance of a de novo review in such matters and the responsibilities of the creditor and the court in this process.
The court found that Mr Renet's application for review was essentially hopeless and should be heard and disposed of promptly at a final hearing, in line with the character of the power being exercised by the court on applications for de novo review of a delegated power. The court held that the sequestration order should be affirmed, as the Applicant had complied with all orders, the Bankruptcy Act 1966 (Cth), and the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth). The court dismissed Mr Renet's application for review and ordered that he pay costs to the Applicant.
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Ratio Decidendi
Legal Principle Established
In the slightly earlier Full Court decision in Bechara v Bates, the Full Court also commented on the process and import of a hearing de novo. For current purposes, it is sufficient simply to record the following from the headnote and the internal references there given:[12](3) A bona fide application for review engages the Constitutional imperative to hear afresh the creditor’s petition. The creditor is the true applicant in a hearing de novo and carries the onus of proving matters and bringing forward evidence required by s 52(1) of the Bankruptcy Act. The debtor does not need to show error in the registrar’s decision and neither the Court nor the creditor can absolve themselves of responsibility respectively to hear and prosecute the creditor’s petition afresh by pointing to non-compliance with timetabling orders or failure to appear. [27], [59], [61], [62], [66], [74], [88], [92]…(5) Applications for review of registrar’s orders do not invalidate, revoke or suspend the exercise of those orders or the delegated authority, which remains in existence whilst review is pending. If after de novo review, the judge concludes a sequestration order is appropriate, the judge dismisses the application leaving the registrar’s order in place and preferably, confirms or affirms the registrar’s order. If the petition is to be dismissed, the sequestration order is set aside or annulled. [88], [149], [150], [155]…(7) If a review application is hopeless, it should be heard and disposed of promptly at a final hearing. Such is consistent with the character of the power being exercised by the Court on applications for de novo review of a delegated power, which should not affect or impede legitimate and proper case management. [91]-[92][12] Bechara v Bates (2021) 286 FCR 166 at [3], [5] and [7].Consideration and disposition In a number of recent decisions, the Full Court has noted the regularly encountered difficulties in review Applications that are filed by self-represented litigants. A summary of some of these problems was noted by the Full Court in Kimber, at [60] (emphasis added):[13]The review application and the 30 May 2016 Affidavit are difficult documents. They do not comply with the Rules, they are repetitive and they contain complaints about Court staff and members of the executive committee of the Owners Corporation, the strata managers and Grace Lawyers which are personal and some are plainly scandalous. Her oral and written submissions are no less challenging. The exact nature of many of Ms Kimber’s complaints is hard to establish. Many of the matters she raises are either outside the scope of the Court’s jurisdiction on an application to set aside a bankruptcy notice (for instance, to change the outcome of the Local Court proceedings having regard to the course taken in attempts at mediation) or misconceived (in effect, treating the review application as an appeal from the Registrar’s decision). She has plainly struggled as a litigant in person, both with accepting the limits of the Court’s jurisdiction and the disciplines imposed by the FCA Act and the Rules designed to ensure fairness to all parties.[13] Even more succinctly, Allsop CJ said, in Robson, at [19]: “… Not infrequently given the nature of the jurisdiction, litigants are self-represented and their documents, claims and the jurisprudential bases therefor may be confused or wanting in expression.”