Vu v Community Association Deposited Plan No 270263 - [2010] FCA 1126

FEDERAL COURT OF AUSTRALIA
Vu v Community Association Deposited Plan No 270263 [2010] FCA 1126

Citation: Vu v Community Association Deposited Plan No 270263 [2010] FCA 1126

Appeal from: Community Association Deposited Plan Number 270263 v Vu [2010] FMCA 370
Application for extension of time:
Community Association Deposited Plan No 270263 v Vu [2009] FMCA 150

Parties: TRANG DOAN VU v COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263
TRANG DOAN VU v COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263

File numbers: NSD 868 of 2010
NSD 1067 of 2010

Judge: KATZMANN J

Date of judgment: 8 October 2010

Catchwords: PRACTICE AND PROCEDURE – application for extension of time to file and serve notice of appeal – whether special reasons – merits of appeal – bankruptcy petition dismissed as debtor solvent but creditor awarded costs up to the time that debtor established she was solvent – whether discretion to award costs miscarried

Legislation: Federal Court of Australia Act 1976 (Cth), s 37M
Federal Court Rules O 52 r 15

Cases cited: Jess v Scott (1986) 12 FCR 187 applied
House v King (1936) 55 CLR 499 applied
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Jazairy v Najjar (1998) 27 MVR 498 cited
Parker v The Queen [2002] FCAFC 133 cited
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied
R v Birks (1990) 19 NSWLR 677 applied
R v Ignjatic (1993) 68 A Crim R 333 cited
Saparas v Touma [2000] FCA 308, 171 ALR 275 cited
Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372 followed
Varmedja v Varmedja [2008] NSWCA 177 cited
Wilson v Alexander [2003] FCAFC 272, 135 FCR 273 applied

Date of hearing: 8 October 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 54

Counsel for the Applicant: Mr P Lange

Counsel for the Respondent: Mr M Klooster

Solicitor for the Respondent: Gilbert M Johnstone & Co

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 868 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
TRANG DOAN VU
Appellant

AND:
COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263
Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

8 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The applicant’s motion to vacate the hearing date is dismissed with no order as to costs.
2.The applicant’s motion seeking access to transcript is dismissed with no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1067 of 2010

BETWEEN:
TRANG DOAN VU
Applicant

AND:
COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263
Respondent

JUDGE:

KATZMANN J

DATE OF ORDER:

8 OCTOBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application for an extension of time to file…

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

Case: [2010] FCA 1126
Decision Date

CaseChat Overview and Summary

The matter before the court was Vu v Community Association Deposited Plan No 270263, a motion brought by the applicant, Vu, against the respondent, Community Association Deposited Plan No 270263. Vu sought an extension of time to file and serve a notice of appeal, a vacating of the hearing date, and access to transcripts of the previous hearings held before the Federal Magistrates Court. The court was tasked with determining whether these requests were justified and whether they should be granted.

The primary legal issues that the court had to address were whether Vu's financial circumstances were dire enough to warrant the granting of an extension of time, whether the hearing date should be vacated, and whether the court should order the provision of transcripts of the previous hearings. The court also had to consider whether the rules permitted the making of such orders.

In dismissing the application, the court noted that the written submissions were unhelpful and that the applicant's submissions regarding their financial circumstances lacked evidentiary support. The court also acknowledged that there was no power in the rules to order the provision of transcripts. Consequently, the court concluded that none of the applicant's requests were justified. The court dismissed the application for an extension of time, the motion to vacate the hearing date, and the motion seeking access to transcripts, with costs in the first instance and no order as to costs in the latter two instances.

Orders

Orders of the court

Full text does not contain this section.

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

This motion can be quickly disposed of. The written submissions were unhelpful. As one might expect, the transcripts do not appear on the Court file. Mr Lange candidly admitted there was no power in the rules to make an order that the Court provide the transcript of the hearings before the Federal Magistrates Court. In any case there is no evidence to support the submission made in support of the motion that the applicant’s financial circumstances are “dire”.Conclusion I therefore dismiss the application and the notices of motion.Orders The application for an extension of time to file and serve a notice of appeal is dismissed with costs. The applicant’s motion to vacate the hearing date is dismissed with no order as to costs. The applicant’s motion seeking access to transcript is dismissed with no order as to costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Vu v Community Association Deposited Plan No 270263 [2010] FCA 1126
Appeal from:		Community Association Deposited Plan Number 270263 v Vu [2010] FMCA 370 Application for extension of time: Community Association Deposited Plan No 270263 v Vu [2009] FMCA 150
Parties:		TRANG DOAN VU v COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263 TRANG DOAN VU v COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263
File numbers:		NSD 868 of 2010 NSD 1067 of 2010
Judge:		KATZMANN J
Date of judgment:		8 October 2010
Catchwords:		PRACTICE AND PROCEDURE – application for extension of time to file and serve notice of appeal – whether special reasons – merits of appeal – bankruptcy petition dismissed as debtor solvent but creditor awarded costs up to the time that debtor established she was solvent – whether discretion to award costs miscarried
Legislation:		Federal Court of Australia Act 1976 (Cth), s 37M Federal Court Rules O 52 r 15
Cases cited:		Jess v Scott (1986) 12 FCR 187 applied House v King (1936) 55 CLR 499 applied Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied Jazairy v Najjar (1998) 27 MVR 498 cited Parker v The Queen [2002] FCAFC 133 cited QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 applied R v Birks (1990) 19 NSWLR 677 applied R v Ignjatic (1993) 68 A Crim R 333 cited Saparas v Touma [2000] FCA 308, 171 ALR 275 cited Sarina v Council of the Shire of Wollondilly (1980) 48 FLR 372 followed Varmedja v Varmedja [2008] NSWCA 177 cited Wilson v Alexander [2003] FCAFC 272, 135 FCR 273 applied
Date of hearing:	8 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	54
Counsel for the Applicant:	Mr P Lange
Counsel for the Respondent:	Mr M Klooster
Solicitor for the Respondent:	Gilbert M Johnstone & Co

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 868 of 2010

BETWEEN:	TRANG DOAN VU Appellant
AND:	COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263 Respondent

JUDGE:	KATZMANN J
DATE OF ORDER:	8 OCTOBER 2010
WHERE MADE:	SYDNEY

BETWEEN:	TRANG DOAN VU Applicant
AND:	COMMUNITY ASSOCIATION DEPOSITED PLAN NO 270263 Respondent