Tsimiklis v Sellers

[2003] FCA 1257

FEDERAL COURT OF AUSTRALIA

Tsimiklis v Sellers [2003] FCA 1257

PRACTICE & PROCEDURE – application for extension of time within which to appeal from a decision of Federal Magistrates Court – need for “special reasons” – absence of adequate explanation for delay – whether applicants’ solicitors mistaken belief as to relevant period amounts to adequate explanation – whether ongoing discussions regarding settlement constitutes adequate explanation – relevance of strength of applicants’ proposed grounds of appeal – application for extension of time refused

BANKRUPTCY – disposition by bankrupt of property to her daughter – whether disposition void as against Trustee pursuant to s 120 of the Bankruptcy Act – federal magistrate found that disposition not made for valuable consideration – applicants seek extension of time within which to file notice of appeal – magistrate made findings of fact regarding applicants’ credibility – application for extension of time refused

Bankruptcy Act 1966 (Cth) s 120

Jess v Scott (1986) 12 FCR 187 at 195 applied
Fitzgerald v The Trustees Executors and Agency Company Ltd (1892) 18 VLR 521 referred to
Re Coles and Ravenshear [1907] 1 KB 1 referred to
Re a Debtor (1910) 55 SJ 48 referred to
Gatti v Shoosmith [1939] Ch 841 referred to
Ratnam v Cumarasamy [1965] 1 WLR 8 referred to
Salter Rex & Co v Ghosh [1971] 2 QB 597 referred to
R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087 referred to
Stollznow v Calvert [1980] 2 NSWLR 749 referred to
Wolcott v Davis (1984) 4 FCR 124 referred to
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 referred to
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 discussed
Repatriation Commission v Nugent [2003] FCA 1184 referred to
Howard v Australian Electoral Commission [2000] FCA 1767 referred to

MARTHA TSIMIKLIS (formerly MILIONIS) and THEONI TSIMIKLIS v KENNETH STEWART SELLERS (as Trustee of the property of Martha Tsimiklis, a bankrupt)

V519 of 2003

WEINBERG J
7 NOVEMBER 2003
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V519 OF 2003

BETWEEN:

MARTHA TSIMIKLIS (formerly MILIONIS)
FIRST APPLICANT

THEONI TSIMIKLIS
SECOND APPLICANT

AND:

KENNETH STEWART SELLERS (as Trustee of the property of Martha Tsimiklis, a bankrupt)
RESPONDENT

JUDGE:

WEINBERG J

DATE OF ORDER:

7 NOVEMBER 2003

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for an extension of time within which to file and serve a notice of appeal be refused. 

2.        The applicants pay the respondent’s costs.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V519 OF 2003

BETWEEN:

MARTHA TSIMIKLIS (formerly MILIONIS)
FIRST APPLICANT

THEONI TSIMIKLIS
SECOND APPLICANT

AND:

KENNETH STEWART SELLERS (as Trustee of the property of Martha Tsimiklis, a bankrupt)
RESPONDENT

JUDGE:	WEINBERG J
DATE:	7 NOVEMBER 2003
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application, pursuant to O 52 r 15(2) of the Federal Court Rules, for…