PRACTICE AND PROCEDURE - application for extension of time within which to seek leave to appeal - whether proposed grounds of appeal have reasonable prospects of success - whether substantial injustice would result if leave refused - application dismissed with costs
Legislation:
Bankruptcy Act 1966 (Cth) ss 19, 109, 149, 152, 153B Schedule 2 (Insolvency Practice Schedule (Bankruptcy)) ss 42-60, 65-25, 70-56
1.The application for an extension of time to seek leave to appeal is dismissed.
2.The applicant is to pay…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Thompson v Lane (No 2) [2025] FCA 951
Case
[2025] FCA 951
Decision Date
CaseChat Overview and Summary
In the Federal Court, Ms Thompson sought an extension of time to seek leave to appeal from an earlier decision. The application arose out of a dispute between Ms Thompson and the respondent, who was the trustee of her bankrupt estate. Ms Thompson sought orders on an interim basis, including that the respondent be removed as trustee and that certain monies held by Worrells be returned to her. The primary judge dismissed Ms Thompson's applications for interim relief and Ms Thompson now seeks to appeal that decision. The court must determine whether the proposed grounds of appeal have reasonable prospects of success and whether substantial injustice would result if leave is refused. The court must also consider whether granting an extension of time would be an exercise in futility.
The court considered the primary judge's reasons and noted that Ms Thompson had misunderstood the effect of her discharge from bankruptcy. The court found that the primary judge had correctly applied the law and that Ms Thompson's proposed grounds of appeal were devoid of merit. The court held that granting an extension of time would be an exercise in futility and dismissed the application for an extension of time to seek leave to appeal. The court also ordered that Ms Thompson pay the respondent's costs of the application.
The court dismissed the application for an extension of time to seek leave to appeal and ordered that Ms Thompson pay the respondent's costs of the application. The court found that the proposed grounds of appeal had no reasonable prospects of success and that granting an extension of time would be an exercise in futility. The primary judge's decision was correct and the court saw no substantial injustice in dismissing the application.
Orders
Orders of the court
1. The application for an extension of time to seek leave to appeal is dismissed.
2. The applicant is to pay the respondent's costs of the application in any event.
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
Full text does not contain this section.
Decision
Reasons for decision
Before dealing with Ms Thompson's contentions made in support of her application for an extension of time, it is necessary to briefly summarise the primary judge's decision. Then, after referring to the legal framework within which Ms Thompson's application falls to be determined, I will explain why I have reached the conclusion that the proposed grounds of appeal are devoid of merit and that granting an extension of time would therefore be an exercise in futility.The primary judge's decision As Ms Thompson sought orders on an interim basis, the primary judge considered that it was necessary for her to demonstrate that there was a serious question to be tried as to the entitlement to the relief sought, that damages would not be an adequate remedy, and that the balance of convenience favoured granting the interim relief sought. In that respect, her Honour referred to what was said about the principles to be applied in determining applications for interlocutory injunctions, by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19]. The primary judge then considered Ms Thompson's various applications for interim relief by reference to two topics:(1)the effect of Ms Thompson's discharge from bankruptcy; and(2)whether the respondent should be removed as the trustee of Ms Thompson's bankrupt estate. In relation to the first of those topics, the primary judge noted (at [22] of her Honour's reasons) that Ms Thompson's discharge from bankruptcy had, to some extent, informed the various forms of relief sought. In that regard, the primary judge noted that Ms Thompson's contentions included that:(a)the respondent had no legal basis on which to continue to administer her estate;(b)the respondent should provide 'full and frank details' regarding the basis on which he continued to administer the bankrupt estate; and(c)monies held by Worrells (the respondent's insolvency firm) should be paid to Ms Thompson because they had re-vested to her when she was discharged from bankruptcy. The primary judge observed that Ms Thompson had misunderstood the nature of a discharge from bankruptcy, referring to s 152 of the Bankruptcy Act (which imposes ongoing duties on a bankrupt, after discharge, to assist a trustee in the realisation and distribution of property as is vested in the trustee) and to several well-known authorities: Pegler v Dale [1975] 1 NSWLR 265; Daemar v Industrial Commission of New South Wales [No 2] (1990) 22 NSWLR 178; Re Balhorn; Ex parte Balhorn and Official Trustee (1981) 39 ALR 223 at 226; and Hudson Jnr v Whalan [1998] FCA 1064 at [7]. In that regard, the primary judge concluded that the respondent was well within his rights to continue to administer the bankrupt estate pursuant to the Bankruptcy Act, to the extent that the administration of the bankruptcy is incomplete, and that he was not required to return monies (held by Worrells) that had been vested in him during the period of bankruptcy.