Tsecouras v Price
[2007] FMCA 1743
•2 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TSECOURAS v PRICE | [2007] FMCA 1743 |
| BANKRUPTCY – Application to set aside Bankruptcy Notice – where applicant is seeking special leave to appeal from High Court. |
| Legal Profession Act 2004 Porter v OAMPS [2004] FMCA 272 |
| Applicant: | PETER TSECOURAS |
| Respondent: | ANNE PRICE |
| File number: | SYG2886 of 2007 |
| Judgment of: | Raphael FM |
| Hearing date: | 2 October 2007 |
| Date of last submission: | 2 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 October 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondent: | Hogan Geikie Poole |
ORDERS
Application be dismissed.
Applicant debtor pay the respondent creditor's costs to be taxed if not agreed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2886 of 2007
| PETER TSECOURAS |
Applicant
And
| ANNE PRICE |
Respondent
REASONS FOR JUDGMENT
This proceeding relates to an application to set aside a bankruptcy notice numbered NN2367/07 issued on 7 June 2007 and served on 12 September 2007. The debt on which the bankruptcy notice is based is a debt for costs of certain proceedings in the Supreme Court of New South Wales heard by Associate Justice Macready on 6 July 2006. The costs have been assessed and judgment obtained in the Local Court under the normal procedures contained in the Legal Profession Act 2004.
The grounds upon which the debtor sought to set aside the bankruptcy notice was that he was:
“Still awaiting notification date for a hearing in Case No S99 of 2007 filed 19 March 2007 in the High Court of Australia, and the matter has not been settled.”
The proceedings in the High Court of Australia were proceedings appealing against a decision of Bryson J given on 26 February 2007 that dismissed Notices of Appeal filed by the debtor against the decision of Associate Justice Macready. It would appear that Bryson J was not the first Judge of Appeal to deal with the Notice of Appeal, Handley J had dealt with it on 11 December 2006. As his Honour said:
“I have also seen the notice of appeal which the appellant filed on 16 August 2006, being the notice of appeal the grounds in which were earlier struck out by Handley J, and I have also seen a further document entitled "Notice of Appeal" dated 31 January 2007. That document suffers from the same difficulties as were identified by Handley J on 11 December, and also some further difficulties with which it is superfluous to deal. It does not purport to be a notice of appeal from the decision of Associate Justice Macready, but from that of Justice Handley, however I have taken the favourable view of treating it as an endeavour to take up the opportunity that Justice Handley proffered in his observations of 11 December. The paragraphs under the heading "Grounds" could not be treated as intelligible grounds of appeal, and the document should be struck out. I should also say that I read the reasons of Associate Justice Macready of 6 July 2006. In the circumstances, having regard to the consideration given to the notice of motion of 1 December 2006 by Handley J on the earlier occasion, and by myself today, I am satisfied that I should make order 1 as claimed, that is, an order pursuant to s61 of the Civil Procedure Act that the appeal be dismissed, and I so order.”
The applicant seeks to bring his application under the provisions of s.41(6A) of the Bankruptcy Act 1966 (the “Act”). It relevantly states:
“(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) ...
The Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.”
It is accepted that the court would have discretion to extend time for compliance with the Bankruptcy Notice in the case of a first appeal against the decision of Associate Justice McCready and in the normal course of events would consider his Honour's judgment before making a decision whether or not to exercise its discretion.
However, the situation is somewhat different where a first appeal has been heard and determined and what is being sought is an extension of time pending the hearing of an application for special leave to appeal to the High Court. In such a case the discretion is exercised more circumspectly and some detailed consideration is often given to the reasoning of the appellate court.
The particular proceedings in respect of which the costs order was made and the costs assessed were proceedings under the Family Provision Act whereby the applicant made a claim upon the estate of the late Dianna Rosemary Keefe who he had known for some considerable time. It is not necessary for me to rehearse in any detail the claims made by the applicant in those proceedings. Suffice to say that the applicant's evidence was not accepted by Associate Justice Macready who came to the conclusion that the plaintiff was not in a de facto relationship with the deceased at the date of her death nor was he a person who could be found to be part of the family unit of the deceased and thus part of the family household. His Honour's grounds for the former finding were based upon a non-acceptance of the applicant's evidence, the latter finding on the basis of authorities cited in considerable detail.
It is clear from the judgment of Bryson J that what he was dealing with was an incompetent attempt at an appeal against the decision of Associate Justice Macready which he dismissed. It was a procedural matter. Of course the debtor is entitled to seek special leave from the High Court to appeal this procedural decision but having read his Honour's decision and having noted that the applicant had had an opportunity to formulate proper grounds of appeal provided to him on a previous occasion by Handley JA I would have to say that his prospects of success in obtaining special leave must be slight.
In those circumstances I would be disinclined to exercise any discretion I might have pursuant to s.41(6A) because, in addition to the failure of the applicant to persuade me that there is any merit in the appeal, I note that the appeal is not against the costs order itself and no attempts since have been made to put a stay on that order pending the appellate decisions. These are additional reasons why I do not propose to exercise my discretion in the applicant's favour.
There is substantial authority, some of it dropping from my own lips, Porter v OAMPS [2004] FMCA 272 that in this type of case the appropriate decision is not to exercise discretion to grant an extension of time but to ensure that when the inevitable petition is presented the court hearing that petition is made aware of the existence of the appeal so that it can decide at that stage whether or not to adjourn the hearing of the petition.
Given that this decision will be placed in the file I have no doubt that the Registrar will be made aware of the situation and I have equally no doubt that the debtor himself will make it quite clear to the Registrar that special leave to appeal has been granted if that occurs.
The application shall be dismissed. The applicant shall pay the respondent creditor’s costs to be taxed if not agreed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: