Vrsecky as trustee of the Bankrupt Estate of Reaper v Reaper
[2016] FCCA 3278
•9 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF REAPER v REAPER & ANOR | [2016] FCCA 3278 |
| Catchwords: BANKRUPTCY – Bankrupt’s application for a stay of a warrant of possession – bankrupt a serial litigant – fifteen separate applications to the Federal Circuit Court of Australia and the Federal Court of Australia, all unsuccessful – this application having no merits – this application being no more than an attempt to forestall the day of reckoning – application dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth) Federal Circuit Court Rules 2001 (Cth), r.29.12 |
| Cases cited: Baycorp Collections PDL (Australia) Pty Ltd v Reaper [2016] FCCA 2458 Compton v Ramsay Health CareAustralia Pty Ltd [2016] FCAFC 106 Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426 Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No.3) [2014] FCA 729 Reaper v Luxton [2015] FCA 430 Reaper v Luxton [2016] FCA 784 Reaper v Vrsecky [2016] FCA 509 |
| Applicant: | PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BRETT VINCENT REAPER |
| First Respondent: | BRETT VINCENT REAPER |
| Second Respondent: | SHARON FISHER |
| File Number: | MLG 931 of 2013 |
| Judgment of: | Judge Wilson |
| Hearing date: | 9 December 2016 |
| Date of Last Submission: | 9 December 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 9 December 2016 |
REPRESENTATION
| Counsel for the applicant: | Mr B. Devanny |
| Solicitors for the applicant: | Madgwicks Lawyers |
| First respondent appearing in person |
No appearance on behalf of the second respondent
ORDERS
The application in a case filed by the first respondent on 6 December 2016 is dismissed.
The first respondent pay the costs of the applicant of and incidental to the application in a case.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 931 of 2013
| PETR VRSECKY AS TRUSTEE OF THE BANKRUPT ESTATE OF BRETT VINCENT REAPER |
Applicant
And
| BRETT VINCENT REAPER |
First Respondent
| SHARON FISHER |
Second Respondent
REASONS FOR JUDGMENT
(Ex tempore)
The first respondent Brett Vincent Reaper filed an application in a case on 6 December 2016 pursuant to which he sought an order under r.29.12 of the Federal Circuit Court Rules 2001 (Cth) that the warrant of possession issued by Registrar Luxton on 23 September 2016 be stayed pending the hearing and determination of proceeding MLG887/2012.
Mr Reaper filed an affidavit on 6 December 2016 to support this most recent application. In Court, Mr Reaper told me that he will be discharged from his bankruptcy in or about February 2017, or at least that is his expectation. Counsel for the trustee informed me today that execution of the warrant of possession issued by Registrar Luxton is imminent. Mr Reaper told me he wanted to avoid his home being sold. I asked Mr Reaper on what grounds he relied to support his application to stay the warrant of possession. He told me he relied upon
“fresh evidence”.
It will be recalled that Mr Reaper also relied on so-called
“fresh evidence” when he unsuccessfully applied before me to stay orders previously made on 18 September 2015 as amended on
9 October 2015 by which the trustee sought the sale of Mr Reaper’s home.[1] Mr Reaper applied for leave to appeal against my refusal to grant him a stay. That leave application came before Collier J of the Federal Court of Australia in Reaper v Baycorp Collections PDL (Australia) Pty Limited.[2] Her Honour dismissed Mr Reaper’s application for leave.
[1] Baycorp Collections PDL (Australia) Pty Ltd v Reaper [2016] FCCA 2458.
[2] [2016] FCA 1454.
In the course of her Honour’s reasons for judgment, her Honour spoke of Mr Reaper re-agitating the same issues as had been dealt with by other judges in similar applications, the details of which I have addressed below. Her Honour also spoke of Mr Reaper engaging improper tactics. As with the application that I heard in
September 2016, then in relation to the so-called “fresh evidence”
(said to have arisen from information in notices to admit) on this application, Mr Reaper again raised an assertion that he relied on “fresh evidence”.
On this most recent occasion, the alleged “fresh evidence” related to a contention that Baycorp Collections PDL (Australia) Pty Limited (“Baycorp”) did not disclose that two credit cards were associated with the same debt. Mr Reaper asserted that the solicitor for Baycorp had omitted documents and that those documents only came to
Mr Reaper’s attention when, on 5 April 2016, Ms D McCredden swore an affidavit that exhibited documents that enabled Mr Reaper, along with other documents, to piece together an examination of the accounting position, leading to his conclusion that two credit cards were associated with the same debt.
This new contention about the nature of the alleged “fresh evidence” is nevertheless a repeat of a tactic in which Mr Reaper has repeatedly engaged by attempting to stop a step in this litigation by alleging that new and hitherto unknown information had recently come to his knowledge. Mr Reaper has also previously asserted that unless a stay were granted, he would lose his home. In this most recent stay application, Mr Reaper again made that assertion.
Two things must be said about the so-called newly identified
“fresh evidence” –
a)first, when properly understood, Mr Reaper is again attempting to go behind the judgment on which the sequestration order was based. He made a similar attempt in the stay application before me in Baycorp Collections PDL (Australia) Pty Ltd v Reaper.[3] And he made a similar attempt in the application before Collier J. It will be recalled that her Honour made specific reference to the decision of the Full Court of the Federal Court in Compton v Ramsay Health CareAustralia Pty Ltd,[4] the most current authoritative statement on going behind a judgment. Mr Reaper did not on this occasion endeavour to argue the point; and
b)
second, the judgment on which the sequestration order was based was not set aside. It remains a judgment regularly entered, notwithstanding the dismissal of Mr Reaper’s application for a
re-hearing on 15 May 2012. For over four years that judgment has stood. Mr Reaper has attempted more than once to impugn that judgment by endeavouring to bring forward so-called
“fresh evidence” to show that the judgment cannot stand.
[3] [2016] FCCA 2458.
[4] [2016] FCAFC 106.
In paragraph 49 of the reasons of Collier J, her Honour referred to the fact that it could not be said that Mr Reaper has not had ample opportunity to challenge the circumstances in which he then found himself. Those comments are as true today as ever. For that matter,
this application today is the fifteenth in a long line of applications brought by Mr Reaper. Let me catalogue them to include –
a)an application before Pagone J in which judgment was delivered (unsuccessfully for Mr Reaper) on 28 January 2014;[5]
[5] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 13.
b)an application before Tracey J in which judgment was delivered (unsuccessfully for Mr Reaper) on 30 April 2014;[6]
[6] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2014] FCA 426.
c)an application before Pagone J in which judgment was delivered (unsuccessfully for Mr Reaper) on 3 July 2014;[7]
[7] Reaper v Baycorp Collections PDL (Australia) Pty Ltd (No 3) [2014] FCA 729.
d)
an application before his Honour Judge Burchardt in which judgment was delivered (unsuccessfully for Mr Reaper) on
10 February 2015;[8]
[8] Vrsecky v Reaper [2015] FCCA 32.
e)an application before Tracey J in which judgment was delivered (unsuccessfully for Mr Reaper) on 11 May 2015;[9]
[9] Reaper v Luxton [2015] FCA 430.
f)an application before Mortimer J in which judgment was delivered (unsuccessfully for Mr Reaper) on 20 November 2015;[10]
[10] Reaper v Luxton [2015] FCA 1296.
g)
an application before his Honour Judge Burchardt in which judgment was delivered (unsuccessfully for Mr Reaper) on
24 August 2015;[11]
[11] Vrsecky v Reaper (No 2) [2015] FCCA 2230.
h)
an application before his Honour Judge Burchardt in which judgment was delivered (unsuccessfully for Mr Reaper) on
18 September 2015;[12]
[12] Vrsecky v Reaper (No 3) [2015] FCCA 2807.
i)
an application before his Honour Judge Burchardt in which judgment was delivered (unsuccessfully for Mr Reaper) on
19 December 2015;[13]
[13] Vrsecky v Reaper (No 4) [2015] FCCA 3067.
j)an application before Davies J in which judgment was given (unsuccessfully for Mr Reaper) on 12 May 2016;[14]
k)an application before Davies J in which judgment was given (unsuccessfully for Mr Reaper) on 26 May 2016;[15]
l)an application before Pagone J in which judgment was given (unsuccessfully for Mr Reaper) on 5 July 2016;[16]
m)an application before me in which judgment was given (unsuccessfully for Mr Reaper) on 22 September 2016;[17] and
n)
an application for leave to appeal before Collier J in which judgment was given (unsuccessfully for Mr Reaper) on
2 December 2016.[18]
[14] Reaper v Vrsecky [2016] FCA 509.
[15] Reaper v Baycorp Collections PDL (Australia) Pty Ltd [2016] FCA 579.
[16] Reaper v Luxton [2016] FCA 784.
[17] Baycorp Collections PDL (Australia) Pty Ltd v Reaper [2016] FCCA 2458.
[18] Reaper v Baycorp Collections PDL (Australia) Pty Limited [2016] FCA 1454.
This is yet another application. Mr Reaper has enjoyed the very considerable advantage of the merits of his case being considered from a number of different angles by a large number of different federal judges. Ultimately, the grant or refusal of an application for a stay involves a consideration of discretionary matters. In this
much-protracted litigation, over four years have elapsed since the relevant judgment underpinning the petition was entered. Since that date, Mr Reaper has, as an undischarged bankrupt, brought an extraordinarily large number of applications before this Court and before the Federal Court of Australia. He has been ordered to pay costs time and again.
The trustee in this case is performing his duties properly in exercising rights over the only asset of value. True a sale of Mr Reaper’s home will occasion hardship to Mr Reaper, but by the same token, the trustee and Baycorp have been put to very considerable expense since
January 2014 resisting an extraordinarily large number of court appearances brought by Mr Reaper. In those circumstances, I see no reason to exercise my discretion to hold up the trustee any further in the discharge of his duty under the Bankruptcy Act 1966 (Cth) in pursuing the warrant of possession issued by Registrar Luxton. To my mind, there is no substance in Mr Reaper’s most recent assertions of the existence of and significance about the alleged new
“fresh evidence”, so-called.
In reality, by a slightly different method, Mr Reaper is endeavouring to go behind the judgment that has stood since the middle of 2012. Despite seven different federal judges having examined Mr Reaper’s contentions and circumstances in the facts of this case, he has not persuaded any of the seven federal judges of the existence of merits in his cause. He has none. Mr Reaper seeks today to do no more than forestall the day of reckoning. I will not extend that indulgence to him.
I dismiss the application in a case filed 6 December 2016 and I order Mr Reaper to pay the trustee’s costs.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 15 December 2016
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