Agresta v Taylor

THE OTHER ORDERS 11 The other orders which the applicant seeks may be dealt with in short order. 12 First, many of the orders are against or would affect Mr Kidd and Ms Smith. Mr Kidd and Ms Smith are not parties to this proceeding. As a matter of discretion, the applicant should not be permitted to amend the application to claim additional relief against, or which would affect, Mr Kidd and Ms Smith in circumstances where they are not parties to this proceeding. Accordingly, the oral application made during the hearing to amend the relief to include claims relating to the decisions of the CTTT and debts alleged to be owed by Mr Kidd and Ms Smith must be refused. 13 Second, the claims relating to the decisions of the CTTT assume that this Court has jurisdiction to review CTTT decisions by reason of the ADJR Act. This is incorrect. The CTTT was constituted by the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act) (the CTTT is now part of the NSW Civil and Administrative Appeals Tribunal). By s 67 of that Act, jurisdiction was vested in the District Court of New South Wales to hear appeals on questions of law. The ADJR Act permits a person "who is aggrieved by a decision to which this Act applies" to apply for review of the decision (s 5). A "decision to which this Act applies" is defined in s 3(1) as: a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition): (a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment ; or (b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment ; other than: (c) a decision by the Governor-General; or (d) a decision included in any of the classes of decisions set out in Schedule 1. 14 Sub-section (a) of the definition, relating to enactments, is thus relevant. The definition of enactment includes: (ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; 15 The other references to "Act" in the definition of "enactment" are irrelevant because "Act" in a Commonwealth statute means an Act of the Commonwealth (s 38(1) of the Acts Interpretation Act 1901 (Cth)), whereas the CTTT Act is an Act of a State. 16 It follows that State Acts (including the CTTT Act) are "enactments" for the purposes of the ADJR Act only insofar as described in Sch 3 to the ADJR Act. The CTTT Act is not described in Sch 3 to the ADJR Act. Hence, it is not an enactment for the purposes of the ADJR Act. 17 Even if this were incorrect, it is clear from s 16(1) of the ADJR Act that all relief under that Act is discretionary as the section provides that the Court "may, in its discretion, make all or any of the following orders…". In circumstances where: - (i) the CTTT Act provided a scheme for rights of appeal limited to questions of law only to the District Court, (ii) those appeal rights were used and the proceeding dismissed by consent of the applicant's trustee in bankruptcy, and (iii) the other parties to the CTTT and District Court proceedings, Mr Kidd and Ms Smith, are not parties to this proceeding, no application for relief under the ADJR Act could be contemplated in the proper exercise of discretion. 18 Third, the same reasoning applies to the amended application insofar as it seeks to found relief against the respondent upon the provisions of the ADJR Act. The relevant provision which founds the applicant's application for relief is s 178(1) of the Bankruptcy Act 1966 (Cth) which provides that: If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. 19 The applicant's reliance on the ADJR Act is misconceived. If the respondent, as trustee in bankruptcy, made decisions under an enactment of an administrative character then, nevertheless, relief under the ADJR Act would not be granted in the exercise of discretion in circumstances where a right of review of the trustee's decisions is granted by s 178 of the Bankruptcy Act. The jurisdiction under s 178(1) of the Bankruptcy Act enables orders to be made as the Court thinks "just and equitable". This is a broadly expressed power of review, far more broad than the scope of any judicial review permitted under the ADJR Act. Accordingly, as a matter of discretion, it would be inappropriate to contemplate claims for relief under the ADJR Act given that the applicant has available and has invoked alternative relief under s 178 of the Bankruptcy Act. 20 It appears that the applicant has sought to rely on the ADJR Act, in part, because of a belief that it would improve his prospects of successfully arguing that the respondent denied him procedural fairness in executing the consent order to dismiss the District Court proceedings. This is misconceived. If denial of procedural fairness is a valid basis to seek to challenge the decision of the respondent then the ground is available under s 178(1) of the Bankruptcy Act. There is no need to call in aid the ADJR Act. However, I do not accept that the decision the respondent made to execute the consent order was conditioned on the observance of procedural fairness to the applicant. The applicant maintains that the District Court was wrong to accept that the proceedings involved property which formed part of his bankrupt estate. If he wished to maintain that claim then the proper course was to seek to set aside the consent order in the District Court. The applicant submitted that he had tried to do so but there is no evidence of any application having been filed in the District Court to set aside the consent order. Instead, the applicant referred to the application he filed in this Court. In circumstances where the applicant could seek to set aside the consent order in the District Court, the entry of the consent order by the respondent in his capacity as trustee did not, in my view, attract any obligation of procedural fairness to the applicant. This also puts paid to the claim in the amended application for the transfer to the Supreme Court of New South Wales, or the remittal to the District Court, of the dismissed District Court proceedings. Those proceedings remain proceedings in the District Court, albeit dismissed proceedings. There is nothing in this Court to transfer or remit. 21 The applicant also appeared not to appreciate the difficulty of the fact that he was the plaintiff in the District Court proceedings yet claims that those proceedings were taken on behalf of his son, Joel Agresta, being the beneficiary under the deed. The difficulty is that the applicant was (and is) an undischarged bankrupt. If Joel Agresta is the owner of the chose in action assigned by the deed (assuming the assignment could be effective for the purposes of argument) then Joel Agresta, not the applicant, was the proper plaintiff in the District Court. There was no right available to the applicant to enforce, personal or otherwise. Hence, the authorities dealing with the meaning of "the property of the bankrupt" in s 5(1) of the Bankruptcy Act are beside the point, at least insofar as the District Court proceedings are concerned. 22 For these reasons there is only one issue in this proceeding which is properly arguable. It is whether it is just and equitable for any order to be made under s 178(1) of the Bankruptcy Act in respect of the act of the respondent of entering into the consent orders to dismiss the District Court proceedings. I turn now to that issue.

THE CONSENT ORDERS 23 I have said above that I do not accept any of the applicant's submissions based on an alleged denial of procedural fairness. The applicant otherwise maintains that the assignment of the choses in action vested in Escon to him under the deed was in his capacity as trustee for his son, Joel Agresta. Accordingly, all rights against Mr Kidd and Ms Smith which Escon held are now vested in the applicant as trustee for his son. As evidence in support of the asserted trust the applicant referred to the minutes of the meeting of creditors in November 2013 (the terms of which are in dispute between the applicant and respondent but both versions of which refer to the claimed trust), correspondence alleged to have been sent to Mr Kidd and Ms Smith notifying them of the assignment to the applicant as trustee for his son, and another deed entered into on 26 February 2014 between the applicant and Escon which contains the following provisions: RECITALS: A. By agreement made on 2 June 2013 the parties agreed to do all things that another party from time to time reasonably requires to effect, perfect or complete the provisions of the Deed made on 2 June 2013 and to execute all such documents. B. Mr Agresta seeks to have the Deed dated 2 June 2013 amended to effect, perfect or complete the provisions of the Deed. C. On and prior to 2 June 2013 the Company knew that Mr Agresta was a bankrupt and was to hold the Deed in trust for Mr Joel Agresta. D. The parties have agreed that the Deed dated 2 June 2013 is amended by any variation as hereinafter appears with an amendments effective as at 2 June 2013. … RECITALS: A. On and prior to 2 June 2013 the Company knew that Mr Agresta was a bankrupt and was to hold the Deed in trust for Mr Joel Agresta. B. The Company lodged two (2) applications (the "Applications") with the Consumer, Trader & Tenancy Tribunal (the "CTTT"). The Applications are identified as CTTT File No: HB 12/46759 and HB 13/19233 respectively. C. A question the Company put to the CTTT for adjudication and determination was thus: "Did the Project Manager have the authority to act for the Consumer?" D. The answer to that question required the CTTT to determine: "Who was the Project Manager?" E. The Respondent to the Applications claimed that Mr Agresta was the Project Manager. F. Mr Agresta denied and continues to deny the Respondent's claims and says that Phoenix Commercial Enterprises Pty Ltd ("Phoenix") was the Project Manager. G. As at the date of this Deed the CTTT has not determined whether Phoenix or Mr Agresta was the Project Manager. H. Until the second question is determined it may be inferred that Mr Agresta was the Project Manager. I. Mr Agresta is seeking a determination to the second question and such other questions that may arise. J. The Company does not have the time or the financial capacity to pursue the Applications or proceedings regarding the Applications. K. The parties have agreed to enter into this Deed to enable Mr Agresta to pursue the Applications and to take whatever action Mr Agresta decides regarding the Applications and to formalise arrangements SUBJECT TO the Company incurring NO LIABILITY or debt arising from any action taken by Mr Agresta or by Mr Joel Agresta. … 1. AGREEMENTS 1.1 The Company and Mr Agresta acknowledge and agree that Mr Agresta paid to the Company the amount of ten dollars ($10) on execution of the Deed. 1.2 The Company and Mr Agresta agree that the Company is not or to be held liable for any action commenced or pursued by Mr Agresta or by Mr Joel Agresta and any liability or debt incurred pursuant to any action taken by Mr Agresta is a debt solely due and payable by Mr Joel Agresta and no debt is due or payable by the Company or by Mr Agresta. 2. ASSIGNMENT 2.1 In consideration of the amount set out in sub-paragraph 1.1 and the matter in sub-paragraph 1.2, the Company assigns to Mr Agresta absolutely: (a) all of the Company's rights, title, interest, capacity and/or chose in action regarding the Applications and the contract dated 17 November 2010 a copy of which is attached to this Deed and the Tax Invoice dated 2 August 2012 that remains unpaid by David Kidd and Odele Smith a copy of which is attached to this Deed; and (b) all rights to any costs, interest amount and damages payable by anyone pursuant to any action taken by Agresta regarding the matter set out in sub-paragraph 2.1(a). … 4.2 Any rights, title, interest, capacity and/or chose in action is to be pursued by Agresta in his own name or as may be otherwise required at law. 4.3 The parties acknowledge and agree that Mr Agresta holds the Deed in trust for Mr Joel Agresta. 24 By s 116(1)(a) of the Bankruptcy Act property divisible amongst the applicant's creditors includes: all property that belonged to, or was vested in, a bankrupt at the commencement of the bankruptcy, or has been acquired or is acquired by him or her, or has devolved or devolves on him or her, after the commencement of the bankruptcy and before his or her discharge. 25 However, by s 116(2)(a), s 116(1)(a) does not extend to: property held by the bankrupt in trust for another person. 26 Neither the applicant nor the respondent was cross-examined. Nevertheless, for the following reasons I consider that the asserted trust does not exist. 27 First, there is no reference to the existence of any trust in the deed as executed on 2 June 2013. If the applicant was accepting the assignment as trustee for his son then it would be expected that some reference to his status as trustee and his son's status as beneficiary would appear in the deed. 28 Second, the deed executed on 26 February 2014 purporting to amend the deed executed on 2 June 2013 appears to be nothing more than a convenience designed to bolster the evidence in support of the claimed trust. As such, it does nothing to enhance the likelihood of the existence of the asserted trust. To the contrary, it suggests that the trust is a device intended to take advantage of s 116(2)(a) of the Bankruptcy Act. 29 Third, the applicant commenced the District Court proceedings in his own name relying on the deed of 2 June 2013 to support his entitlement to bring those proceedings. There is no reference, in the amended application and affidavit in support that the applicant swore, to the proceedings having been commenced by the applicant as trustee for his son. There is no mention of the existence of any trust. If the applicant was bringing proceedings in the District Court as trustee for his son then it would be expected that some reference to his status as trustee and his son's status as beneficiary would appear in the documents he filed in the District Court. 30 Fourth, the respondent's unchallenged evidence is that: At no time prior to the meeting of creditors held at 4 November 2013 had the Applicant or anyone else asserted that the Deed was held on trust. 31 Fifth, the applicant did not suggest in his affidavit that he had told the respondent that he had entered into the deed as trustee for his son before the meeting on 4 November 2013. 32 Sixth, it is highly unlikely that the respondent would have executed the consent order in the District Court proceedings on 25 July 2013 had he been aware that the applicant claimed the choses in action were vested in him as trustee if the respondent had not yet had an opportunity to investigate and form an opinion about those claims. 33 Seventh, it is highly unlikely that the applicant would not have immediately sought to set aside the consent order in the District Court on the basis that he was a mere trustee of the choses in action and was bringing the proceedings in his capacity as trustee of property vested in his son. 34 Eighth, the applicant filed an affidavit in this Court in support of his original application on 20 September 2013 (the affidavit is wrongly dated 20 September 2012). In that affidavit, the applicant claims that he was denied procedural fairness by the District Court in the making of the consent orders. The applicant sets out a conversation he had on the day the consent order was made with the Associate to the Judge of the District Court who made the orders. There is no reference in that conversation to the entry of the consent orders having been wrong because the applicant was a mere trustee. Nor does the applicant elsewhere make any assertion in the affidavit that he held the rights as trustee. To the contrary, he refers to the acts of the respondent affecting him by "extinguishing my right to take action under the Deed", and "my right[s]" in respect of numerous other matters all connected with the dealings between Escon, Phoenix and the applicant on the one hand, and Mr Kidd and Ms Smith on the other hand. Given that this affidavit refers also to the concepts of "after-acquired property" and "property divisible amongst my creditors", it is inconceivable that the applicant would not have mentioned the asserted trust in this affidavit had such a trust truly existed. 35 Ninth, the resolution at the meeting of creditors of 4 November 2013 also suggests that the trust is a recent invention. The resolution reads as an after the fact attempt to create a trust when none existed in the first place. 36 When these matters are taken into account, the conflicting evidence of the applicant and the terms of the minutes of the meeting of creditors referring to the existence of the trust carry little weight. I am satisfied that when the deed was entered into on 2 June 2013 the applicant did so in his own capacity and not as trustee for his son. The attempts to assert otherwise are unpersuasive and should not be accepted. The property under the deed is thus after-acquired property within the meaning of s 116(1)(a) of the Bankruptcy Act which vested in the respondent as trustee by operation of s 58(1)(b) of that Act. The applicant, accordingly, was not entitled to bring the District Court proceedings without the respondent's consent. By s 134 of the Bankruptcy Act there was vested in the respondent as trustee the right to "compromise any debt claimed to be due to the bankrupt or any claim by the bankrupt" (s 134(1)(e)) and "bring, institute or defend any action or other legal proceeding relating to the administration of the estate" (s 134(1)(j)). As the respondent submitted, these powers are to be exercised to best achieve the maximum return to creditors and surplus to the bankrupt. Nothing in the evidence in this matter suggests that the decision the respondent made, to have the District Court proceedings dismissed, was other than the correct and preferable decision in all of the circumstances. Nothing would support the conclusion that it would be just and equitable to set aside the decision of the respondent to enter into the consent orders to dismiss the District Court proceedings or otherwise to make any of the orders the applicant seeks. To the contrary the reasons the respondent gave for having acted to consent to the dismissal of the District Court proceedings on the basis of no order as to costs provide compelling evidence of the wisdom of this course. The respondent said he had made his decision taking into consideration: (a) The rights acquired under the Deed by the Applicant vested in me pursuant to Section 58 of the Act. (b) The Applicant's bankrupt estate had no funds. If I was joined as a party to the District Court proceedings there was the potential for the bankrupt estate and me personally to be exposed to adverse cost orders. (c) Without legal advice, I had no appreciation as to the likelihood of the success or otherwise of the Appeal. (d) It appeared to me that clause 1.2 of the Deed provided for an indemnity to Escon from any claims arising from any action commenced by the Applicant. 37 The applicant's submissions, to the effect that the respondent should have approached a litigation funder for funding to determine the prospects of success of the District Court proceedings, are not persuasive. There was no proper basis for the respondent to do anything other than what he did. The applicant's conduct in commencing the District Court proceedings was improper. There was nothing to suggest any substance in the proceedings. There were no funds available. Pursuing litigation funding is fanciful speculation after the event. 38 Insofar as the applicant sought to raise a jurisdictional issue about the District Court, the claim is also misconceived. The applicant contended that the District Court did not have jurisdiction to make the consent orders because, in so doing, the District Court was deciding a matter "in bankruptcy" so that, by s 27(1) of the Bankruptcy Act, this Court has exclusive jurisdiction. The difficulty is that the applicant himself commenced the District Court proceedings on the now purported basis that they did not involve anything to do with his bankruptcy. The proceedings as constituted said nothing about the Bankruptcy Act. The trustee simply exercised his powers under s 134(1) of the Bankruptcy Act to compromise the proceedings. The District Court had the right to control its own process and to decide what to do with the proceedings before it irrespective of the fact that the respondent's conduct involved an exercise of power under the Bankruptcy Act. Moreover, for the reasons given above, the District Court was right to act on the consent orders as executed by the respondent. As Branson J said in Meriton Apartments Pty Limited v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172 at [8]: Nothing in s 27, or elsewhere in the Act, discloses an intention to deprive a State court of the power to determine the status of a proceeding before it. 39 Further, at [18] Branson J said: … it is not to exercise jurisdiction under or by virtue of the Act for a court simply to recognise the effect of the Act. Indeed it is necessary for a court to be able to determine the standing of parties before it. 40 It follows that the District Court had jurisdiction to make the consent orders entered into by the respondent and the defendants to the District Court proceedings, Mr Kidd and Ms Smith. And, as I have noted before, Mr Kidd and Ms Smith are not parties to this proceeding. They would be necessary parties before any application could be made to set aside the consent orders in the District Court.

OTHER MATTERS 41 During the hearing the applicant raised other concerns. First, he submitted that he had assumed he would be able to apply for summary judgment by reason of the respondent's default (referring to r 5.22(d) of the Federal Court Rules 2011 (Cth)) because he had not been served with a sealed copy of the respondent's affidavit or the respondent's submissions. It emerged, however, that the applicant had received unsealed copies of these documents, in the case of the affidavit within the time required and in the case of the submissions later than the time required but before the hearing. I informed the applicant that, in these circumstances, he could not apply for any form of summary judgment, the substance of his application had to be determined and that, accordingly, he should proceed. Second, he submitted that the respondent's submissions should not have been accepted as they were filed out of time. I asked the applicant whether he was able to deal with those submissions. When he indicated he could proceed with the balance of his matter but could not deal with the written submissions, I indicated that I would grant him leave to file and serve further written submissions in reply within 14 days. The applicant took that opportunity and filed further written submissions on 14 March 2014. Third, the applicant complained that when he checked the Court's records he could not find any indication that the respondent's submissions had been filed. I indicated that I was unable to assist with that complaint. 42 In his further written submissions the applicant re-agitated each of the concerns described above. In particular he submitted that the respondent's submissions, having been filed irregularly, should be set aside and not considered. Even if the factual premise of these submissions was correct, it would be wrong to ignore the respondent's submissions. The submissions were due to be filed and served on 21 February 2014. They were not submitted to the Court for filing until 25 February 2014. At that time, in accordance with the Registry's usual practice, I was asked whether the document should be accepted for filing. I indicated that the submissions should be accepted for filing on the basis that when the matter came before me for hearing on 28 February 2014, the applicant would have an opportunity to be heard about the relevant question, namely, whether he was able to deal with the submissions or not. For these reasons, the submissions were not irregularly filed. Moreover, as the applicant's further written submissions disclose, he received a copy of the respondent's submissions during the evening of 25 February 2014. In other words, he had the submissions for two days before the hearing. In these circumstances, the applicant's attempts to rely on the affidavit with which he was served not being sealed and the submissions being filed out of time as reasons to avoid a hearing on the merits lack any real foundation. They are submissions elevating form over substance. Insofar as the applicant submitted that he was surprised that the respondent was permitted to rely on the affidavit and/or submissions, leaving his case in alleged disarray, the short answer is that it was unreasonable of the applicant to assume that the technical defects (the lack of the seal on the served copy of the affidavit and the submissions being three days late but still two days before the hearing) would mean that the Court would accede to his application for summary judgment in his favour by reason of the respondent's default. That belief was misconceived and any prejudice to the applicant was caused by his own misconceptions. In any event, such prejudice as there might have been was rectified by the grant of leave to the applicant to file and serve further written submissions. 43 In those further written submissions the applicant also purported to make yet further applications withdrawing some of the relief sought and making new and different claims for relief. No leave was given to enable further applications to amend. The leave was limited to the filing and serving of written submissions in reply to the respondent's submissions. In any event, insofar as the new proposed relief can be understood, the issue of the jurisdiction of the District Court to make the consent orders has been considered and answered against the applicant above. The applicant's references to Meriton Apartments Pty Limited v Industrial Court of New South Wales (2008) 171 FCR 380; [2008] FCAFC 172 in his further written submissions omit those parts of the reasons for judgment in which the Full Court answered the question of the jurisdiction of the Industrial Court of New South Wales (set out above). The majority of the Full Court held that the Industrial Court of New South Wales had the requisite jurisdiction. The decision does not support the applicant's case but, rather, is against the applicant. 44 The applicant's further written submissions also made allegations against Mr Kidd and Ms Smith and invited the Court to locate within the file of the CTTT (which was delivered to this Court's Registry at the applicant's request) certain affidavits of Mr Kidd and Ms Smith and to make serious findings against them. The impropriety of this course should be obvious. First, this proceeding is not an appeal against the decisions of the CTTT, despite the applicant's attempts to make it so. Second, and as noted, Mr Kidd and Ms Smith are not parties to this proceeding. Third, the fact that this Court's Registry acceded to the applicant's request and obtained the CTTT file from the CTTT does not mean that the CTTT's file is before this Court. This is not a matter of this Court "shutting its eyes" to anything, as the applicant alleged. It is a matter of the applicant inappropriately attempting to appeal against the decision of the CTTT to this Court. 45 The applicant's further written submissions also refer to events after the hearing concerning his dealings with the respondent as trustee and, on that basis, requested that the judgment and orders be postponed until after a meeting of creditors to consider the annulment of the applicant's bankruptcy, such meeting apparently to be scheduled by 28 April 2014. This request is also inappropriate. The events after the hearing are not before this Court. A party which has enlivened this Court's jurisdiction by application has no entitlement, after the hearing, to dictate when the judgment should be delivered. Accordingly, I refuse to entertain this request.

CONCLUSIONS 46 None of the claims in the amended application or applications for further relief made orally during the hearing has merit. The proceeding must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.