Grant v Williams, in the matter of Williams [2025] FedCFamC2G 430

1. Before the Court is an interim application filed on 8 July 2024 (Interim Application). These reasons concern the first two orders sought in that application. The applicant in the Interim Application (Kashaya) seeks review of the exercise of power of a Registrar of this Court in relation to orders made on 1 August 2023 and also an extension of time in which to seek such review. By the orders made on 1 August 2023, inter alia, Kashaya's estate was sequestrated under the Bankruptcy Act 1966 (Cth) (Act).
2. Also before the Court is a related application (Associated Application) seeking orders regarding joinder, amendment of Bankruptcy Notice No. BN 259090 (Bankruptcy Notice) and the associated creditor's petition (Creditor's Petition), or substitution of a petitioning creditor.
3. For the following reasons, I have found that the Interim Application ought to be dismissed insofar as it concerns the relief sought at [1] and [2] of that application. The Associated Application ought similarly to be dismissed.

1. The first and second respondents to the Interim Application are stated to involve Mr Seth Grant (Seth) in two capacities. The first is "Alan Grant by his Tutor Seth Garran Niels Grant". The second is "Seth Garran Niels Grant as Representative of the Estate of Alan Grant". As Grant is a name common to certain persons that are the subject of this proceeding, I will adopt the practice of identifying certain persons by their given names. I intend no disrespect in doing so. I note that this practice has also been adopted in the related Supreme Court proceedings considered below.
2. Seth is the son of Dr Alan Grant (Dr Grant). Seth, as his father's tutor, brought Supreme Court proceedings no. 2017/316190 on his father's behalf in 2017 (estate recovery proceedings). Those proceedings sought recovery of money said to have been removed from his father's bank accounts by Kashaya's mother (Nerez) whilst she was acting under a power of attorney. Recovery was also sought regarding title to a property in Killcare (Killcare Property) that had been transferred to Kashaya the month before the power of attorney was revoked. Following objection to Seth acting as his father's tutor, orders were made for the NSW Trustee and Guardian to manage Dr Grant's financial affairs.
3. In related proceedings no. 2018/139174 (family provision proceedings), Nerez sought provision out of the estate of her late mother.
4. Dr Grant died on 7 November 2019. On 21 November 2019, an order was made pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) appointing Seth as representative of Dr Grant's estate in the estate recovery proceedings.
5. Judgment was delivered in the estate recovery proceedings and family provision proceedings on 24 September 2020: Grant v Grant; Grant v Grant (No. 2) [2020] NSWSC 1288. In the estate recovery proceedings, orders were made setting aside the transfer of real estate to Kashaya as well as a lease involving Kashaya and Nerez. Nerez was ordered to pay compensation to Dr Grant's estate. In the family provision proceedings, Nerez's claim was dismissed. Associated costs orders were made. Seth's capacity in the estate recovery proceedings was described in the judgment as "Representative of the Estate of Alan Grant: Seth Grant".
6. Judgment on an indemnity costs application was delivered on 5 January 2021: Grant v Grant; Grant v Grant (No. 3) [2021] NSWSC 1. In the estate recovery proceedings, Kashaya and Nerez were ordered "to pay the costs of the plaintiff, Seth Grant, as the representative of the estate of the late Alan Grant on the indemnity basis". Indemnity costs were ordered against Nerez in the family provision proceedings.
7. On 9 December 2021, orders were made in the estate recovery proceedings extending Seth's role to allow him to take possession of and perform certain functions in relation to the Killcare Property.
8. On 11 February 2022, orders were made pursuant to s 73(1)(a) of the Probate and Administration Act 1898 (NSW) (P&A Act) that a grant of special administration in Dr Grant's estate be made to Seth. The grant of special administration involved the grant of specified powers. Seth was also appointed to represent the estate in proceedings no. 2021/339080 (Probate proceedings), which involves a conflict in relation to the prevailing will of Dr Grant. These orders will be the subject of further consideration below.
9. On 10 June 2022, further orders were made regarding the calculation of costs: Grant v Grant; Grant v Grant (No. 5) [2022] NSWSC 773. This followed an unsuccessful appeal by Kashaya and Nerez. It also followed Nerez's bankruptcy. Seth's capacity was described in the reasons for judgment as "Representative of the Estate of Alan Grant: Seth Grant".
10. On 28 October 2022, judgment was entered against Kashaya in the estate recovery proceedings for the estate's costs up to 10 June 2022 in the sum of $581,257.90, and for equitable compensation for deprivation of the Killcare Property in the sum of $83,200: Grant v Grant; Grant v Grant (No. 6) [2022] NSWSC 714. Seth's role was recorded in the "Parties" section of the reasons for judgment as "Representative of the Estate of Alan Grant: Seth Grant". However, in the associated orders made on the same day, Seth's role was recorded (in relation to the First Plaintiff) as "Alan Grant by his Tutor Seth Garran Niels Grant".
11. On 1 December 2022, orders were further made in the estate recovery proceedings entering judgment against Kashaya in the sum of $90,085.43 in respect of costs incurred regarding the Killcare Property. The orders recorded the "First Plaintiff' as "Alan Grant by his tutor Seth Garran Niels Grant".
12. On 6 March 2023, the Bankruptcy Notice was issued. The "Creditor's name" on the Bankruptcy Notice was described as "MR Alan GRANT BY HIS TUTOR SETH GARRAN NIELS GRANT".
13. A related creditor's petition (Creditor's Petition) was subsequently filed and heard. On 1 August 2023, a sequestration order and related orders were made.

1. This case has not progressed smoothly.
2. The Interim Application was filed on 8 July 2024. Once accepted for filing, the Interim Application was listed by the Registry for directions on 12 August 2024 and allocated to my docket.
3. Some way into the directions listing on 12 August 2024, Kashaya's Counsel (Ms Nolan) raised an inability to obtain instructions. This was in circumstances where her solicitor had become unavailable (for understandable reasons). The parties therefore supported the matter being adjourned for a subsequent directions hearing in order for a timetable to be set.
4. Orders were subsequently proposed and made by consent on 26 August 2024. Those orders provided a timetable for the filing and service of further material and listed the matter for hearing on 12 November 2024.
5. The orders made on 26 August 2024 were not complied with. Seth was late in filing his evidence and submissions. Despite orders requiring the Court Book to have been filed and served in October, and a hardcopy to have been provided, folders containing what was said to be the Court Book were only delivered to Chambers the day before the hearing. At the hearing on 12 November 2024, Seth's Counsel (Mr Connor) advised that he had only seen the Court Book prepared by Kashaya's representatives the morning of the hearing. Mr Connor also advised that there was another version of the Court Book, that had not made its way to Court and was being prepared on the morning of the hearing. This was said to be on account of material that was missing from the other version. Volumes containing Seth's version of the Court Book arrived around the middle of the day, during the course of the hearing.
6. The basis of the application varied significantly over the course of its advancement. In Ms Nolan's written submissions dated 2 September 2024, Ms Nolan submitted that there could "be no dispute that the purported judgment creditor being, Alan Grant by his tutor Seth Grant, was unable to enforce the judgment the subject of the Bankruptcy Notice and Creditor's Petition" as "[s]ince 11 February 2022, that power vested in Seth Grant as the Special Administrator appointed to the Estate of the Late Alan Grant". However, in written submissions lodged in the evening 2 days before the hearing, and in oral submissions at hearing, Ms Nolan suggested that Seth had not possessed the power to enforce the relevant judgments, in any capacity, and that those actions went beyond the powers granted to him on 11 February 2022.
7. The parties were unable to conclude their oral submissions in the time they had estimated and been notified was available for hearing on 12 November 2024. This was in circumstances where, inter alia, Ms Nolan had indicated a desire to research the recently articulated point regarding Seth's authority, which was said to involve considerations that were "really, really complex". It was in circumstances where I was concerned about the level of opportunity that Seth had been given to respond to the issue.
8. It was also in circumstances where there seemed to be some disconnect between the approach taken by the parties to the question of the extension of time and the review sought. As Ms Nolan observed in reply submissions at the hearing, Seth had not placed himself in a position at the time of the hearing to address the requirements of a de novo hearing regarding the sequestration order in the event that the extension of time were granted. For example, no evidence or submissions had been relied upon regarding the question of service.
9. The matter was listed for the morning of 20 November 2024 to allow completion of oral submissions. Mr Connor sought to rely upon further written submissions, which were only seen by Ms Nolan and the Court that morning. At the resumed listing, Ms Nolan confirmed that she did not seek further hearing if an extension of time were granted but asked the Court to, in that event, decide the review on the basis of the submissions and evidence that had already been made. I have understood, from submissions made at other times over the course of this matter, that Mr Connor was urging a similar approach in order to limit costs. At the hearing on 20 November 2024, Seth sought leave to rely upon evidence addressing the matters the Court would need to be satisfied of under s 52 of the Act if an extension of time were granted. Mr Connor explained that, because matters such as service had not been expressly challenged, he had not understood them to be in dispute. Ms Nolan advised that leave to rely upon such evidence was opposed.
10. Another extant issue at the time of the resumed hearing was the question of service on creditors. Not all of the persons identified as known creditors by the third respondents to the Interim Application (Trustees) in their 6 October 2023 Report to Creditors had been served with notice of the Interim Application. However, r 7.05 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) required that notice have been served on each known creditor at least 7 days before the date fixed for hearing. Kashaya had taken the position that it was unnecessary to serve those identified as creditors by the Trustees where she disputed owing them money. This was challenged by Seth. After some discussion on this at the hearing, Ms Nolan advised that Kashaya sought an opportunity to dispense with Seth's objection through further effecting service.
11. In the above circumstances, the matter was listed on 4 December 2024 for what was intended to be a brief, remote listing to confirm if any (alleged) creditor sought to be heard following the additional service foreshadowed by Ms Nolan. Ms Nolan had indicated an expectation that no creditor would attend. Orders were also made permitting the filing and service of written submissions according to a specified timetable. This was in circumstances where I indicated to the parties that I did not consider I had been fulsomely addressed on certain matters.
12. In making the orders, I queried the appropriateness of orders being made against the first respondent to the Interim Application ("Alan Grant by his Tutor Seth Garran Niels Grant") and of the first respondent being a party to the proceeding. This was in circumstances where Dr Grant was long deceased. Ms Nolan submitted that this "should be the end of the matter", as the first respondent was the only respondent that she moved against in relation to the first and second orders sought through the Interim Application. Ms Nolan submitted that the second respondent was "not a party to this application, cannot be and never will be". In response, I observed that I had heard from Seth (ostensibly appearing in that capacity) through Mr Connor, without objection, prior to this issue being raised towards the end of the second day of hearing on 20 November 2024. Ms Nolan expressed that she was "moving against a non-entity" and this was why she was saying that the Court had no jurisdiction. I suggested that this may be something that the parties wished to clarify in the post-hearing submissions.
13. Submissions were filed two days late by Seth (in whatever capacity)'s representatives. No submissions were filed by Kashaya's representatives. About an hour before the listing, Ms Nolan sought adjournment of the hearing by email. This was in circumstances where Ms Nolan's instructing solicitor was overseas (and had been overseas at the time of the hearing on 20 November 2024). Ms Nolan's email referred to having not received "the Respondent['s]" submissions until the day before, despite difficulties that Ms Nolan had raised on the last occasion regarding other commitments. Given that the adjournment request was received shortly before the listing, however, and the limited purpose of the listing, the listing was maintained on the basis that any adjournment request could be pressed once the listing commenced.
14. As it happened, there was an appearance for a company said to be a creditor at the listing on 4 December 2024. However, the company in question did not indicate a desire to take an active role. Ms Nolan pressed the adjournment application, expressing that the recently received submissions involved "a number of complex principles", including regarding joinder, with which she would need to engage. Ms Nolan confirmed that she was relying upon the argument that she had raised on the last occasion regarding standing. Given Ms Nolan's inability to obtain instructions, the matter was listed for directions on 9 December 2024.
15. On the Friday before the listing on Monday, 9 December 2024, Kashaya's representative emailed my Associate. The email advised that she was in the Scottish Highlands, had difficulties communicating with her client, Counsel and others, and would be uncontactable on 9 December 2024. Adjournment of the listing was sought, until "possibly at the beginning of the 2025 Court term". The adjournment was opposed. Noting this and the fact that no alternative availabilities had been provided (either in December or in 2025), the parties were advised that the matter would remain listed on 9 December 2024.
16. At the directions listing on 9 December 2024, a timetable was made for the filing and service of final written submissions in the matter. The timetable was not complied with. On 17 December 2024, after the deadline for Kashaya's submissions had passed (with no submissions having been lodged), the Associated Application was filed. That application sought a number of orders including joinder, amendment of the Bankruptcy Notice and Creditor's Petition, and/or substitution of the petitioning creditor. The orders regarding joinder appeared responsive to the issue on standing that had been raised by Ms Nolan towards the end of the hearing on 20 November 2024. Although suggestions regarding the latter orders had appeared in Seth's earlier submissions, no formal application for the orders had previously been made. Kashaya's submissions (spanning 2 pages on the earlier question of leave to re-open) were lodged shortly after lodgement of the Associated Application.
17. On 20 December 2024, my Associate queried what the parties proposed in relation to the Associated Application. In particular, my Associate queried if the parties sought to be heard on the application orally or consented to its determination on the papers. My Associate also queried whether any opportunity was sought to be heard if leave were granted regarding evidence that was the subject of Seth's application to reopen (i.e. evidence that was relied upon in support of the Creditor's Petition).
18. Kashaya's representative responded on 20 December 2024. She contended that the Associated Application ought to be dismissed but did not advise whether Kashaya consented to its determination on the papers. In relation to the evidence that was relied upon in support of the Creditor's Petition, no further opportunity to be heard was sought. However, an argument was raised (for the first time) in the following terms:

If, contrary to the Applicant's submission, the Court grants leave to reopen, the Applicant asserts that the service of the creditor's petition within the precincts of the Court constitutes a serious procedural irregularity. Such service is contrary to established principles and may amount to a contempt of court. It is well-settled that the precincts of the Court are intended to be free from the coercive actions of process service.

1. My Associate sought clarification of whether Kashaya consented to determination of the Associated Application on the papers. Kashaya's representative responded that she would seek to be heard orally on the application if the Court were "not minded to dismiss" it.
2. Seth's representative responded later in the day, expressing that no further listing should be required on the Associated Application as it simply formalised arguments already made. However, noting that an oral hearing had been sought by Kashaya, Seth's representative expressed that the further listing was "in the Court's hands". Seth's representative expressed (understandable) concern about the largely unparticularised "contempt of court" allegation that had been raised in the email from Kashaya's representative. An opportunity to be heard on that, if it were not "ignored", was sought.
3. As Kashaya had not consented to determination of the Interim Application on the papers (and noting the concerns expressed by Seth's representative), my Associate queried the parties' availability for the further listing. Seth's representative responded promptly, on 23 December 2024. However, as no response was received from Kashaya's representative by 8 January 2025, a follow up email was sent. A further follow up email was sent after no response had been received by 23 January 2025. After updated availabilities were provided by Seth's representative on 28 January 2025, Kashaya's representative responded with availabilities from late February. The matter was accordingly listed on 28 February 2025.
4. At the listing, further oral submissions were made. Ms Nolan expressed dissatisfaction at the time the matter was taking to be concluded. However, Ms Nolan also stated that she was not in a position to make fulsome submissions on the Associated Application and indicated that she was confining her submission to the question of whether leave should be granted in relation to it. Ms Nolan expressed that "another round of fulsome submissions" would be required if leave were granted. For the reasons given below, I do not consider that this is necessary.
5. In any event, I share Ms Nolan's concerns that this matter has not been able to be determined more expeditiously. The overarching purpose in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) includes the just resolution of disputes as quickly, inexpensively and efficiently as possible. However, parties must act in a way that assists the Court with that overarching purpose: s 191. Actions such as complying with the Court's orders, adopting consistent positions, articulating the basis of an application sufficiently in advance of a hearing, and making applications and arguments in a timely fashion and by careful reference to law and evidence (rather than assertion), are all actions that may assist the Court in resolving disputes in an efficient and cost-effective fashion. As will be apparent from the above, such an approach has not been universally adopted in this case.
6. The above is not stated to make any particular criticism of any party (or their representatives). I acknowledge that this may have been a difficult case to present on both sides. However, the above background is relevant to a conclusion reached below that the matter ought to be determined notwithstanding that I do not consider that I have been fulsomely addressed on all matters. This is in circumstances where I consider that the parties have been given adequate opportunity to develop their arguments in this matter.

1. In written submissions filed on 3 September 2024, Ms Nolan referred to the following principles regarding extensions of time:
   1. The Court has a discretion to extend the time for the Applicant to file the Review Application. In considering whether to grant the extension of time, the Court often has regard to matters such as the length of the delay, whether the Applicant has a reasonable explanation for the delay, any prejudice to the respondent or other persons, and the merits of the underlying application: see Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344 at 348-349; CTT23 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FedCFamC2G 274 at [19]; Satty v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 982 at [36].
2. Ms Nolan made somewhat more aggressive submissions orally, contending that none of the other considerations were able to overcome what was asserted to be the Court's lack of jurisdiction in the matter. Ms Nolan contended that, as there was no act of bankruptcy, there was no jurisdiction in this Court to make the sequestration order. Ms Nolan submitted that the application should therefore succeed, regardless of the other factors, because otherwise the Court would confer upon itself a jurisdiction it did not have. This was in circumstances where it was submitted that there had been an "obvious case of an abuse of this Court's jurisdiction".
3. I am not persuaded by these submissions. No directly applicable authority was relied upon in support of them. The submissions appear contrary to cases indicating the role of other factors affecting consideration of the discretion to extend time.
4. Had the application been made within time, then all that would have needed to have been determined were the de novo considerations accompanying an application for review of a Registrar's decision under s 256 of the FCFCOA Act. However, the right to have such an application under s 256 of the FCFCOA Act determined requires that such an application be made (a) "within the time prescribed by the Rules of Court"; or (b) "within any further time allowed in accordance with the Rules of Court". Where the application has not been made within time, there is no right to such a review, absent an extension of time. There are obvious reasons for this. Delay in making review applications can invoke other considerations, including the potential for prejudice and other significant consequences for people involved. It cannot be said that such considerations, no matter the length of the delay or the reasons for it, are of no real consequence.
5. Ms Nolan referred in oral submissions to the case of Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, in which relief was not refused by reason of delay. However, that decision does not stand for any proposition that the merits of an application are necessarily determinative on an extension of time application, regardless of other considerations. More recently in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 276 CLR 579, the High Court acknowledged the breadth of the discretion regarding time extension in the migration context. In that context, it was considered (in example) that if delay were lengthy and unexplained, then an applicant may be required to demonstrate that a case is strong or even "exceptional": at [18] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gleeson JJ.
6. Mr Connor relied upon Fang v Lin [2024] FedCFamC2G 747 (Fang) at [31]-[32]. In that case, Judge Bingham relied upon what was said by Judge Manousaridis in Ashwood v Ashwood [2024] FedCFamC2G 88 at [52] as follows:
   1. A debtor's right, on an application for review of a Registrar's sequestration order, to a de novo hearing of the creditor's application for a sequestration order depends on the debtor having made an application for review within the 21 day period prescribed by r 2.02(3) of the Bankruptcy Rules. Where, however, a debtor has not applied for the review of the Registrar's sequestration order within the 21 day period, the debtor must seek an order from the Court that the 21 day period be extended. That would require the exercise of discretion, and would bring into play factors that would not be relevant if an application for review were made within the 21 day period. The Court would have to consider whether there is a reasonable explanation for the delay; the length of the delay, what actions persons have taken on the faith of the sequestration order and whether, having taken such actions, extending the time for making an application for review will cause prejudice to such persons; and also whether there would be any arguable point in the Judge's hearing of the creditor's petition, such as would merit extending the time for the making of an application for review of the sequestration order.
7. I accept Mr Connor's submission that there are other factors of potential consequence in this case. These include the extent of the delay and its effect upon Seth, the Trustees and Kashaya's creditors. That said, I accept that the merits of the application can be, and usually are, a powerful consideration in the exercise of discretion.

1. The Registrar's decision was made on 1 August 2023. The Interim Application was not filed until 8 July 2024. An application under s 256(1) of the Act for review of the Registrar's decision was required to have been made within 21 days after the day on which the power was exercised: r 2.02(3) of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy Rules) Rules 2021 (Cth). The application was made, therefore, nearly 11 months out of time. Within the applicable statutory and factual context, this is a significant period of delay.
2. The following explanation was relied upon in written submissions dated 2 September 2024:
   1. The basis for the Review Application is legally complex and technical and would not be readily apparent to a lay person, and, indeed, as the facts of this case would support, the legal practitioners and counsel who appeared on the application for the purported Applicant Creditor and the Registrar of this Court from whose orders the review is sought.
   2. The Review Application was precipitated by the contribution of Counsel briefed in the Supreme Court Probate Proceedings (Williams v Grant, no. 2021/00339080), who in May 2024, upon examining material in the earlier Supreme Proceedings (per curiam Slattery J, in proceedings no. 2017/00316190 and 2018/0013 9174, Alan Grant by his tutor Seth Garran Niels Grant v Nerez Grant & Ors) discerned that the judgments entered in the Supreme Court proceedings, the subject of the Creditor's Petition, were irregular. It was on this occasion that Counsel noted for the first time the implications for the sequestration order made pursuant to those judgments;
   3. The Applicant's application to set aside the bankruptcy was out of time, so the issues the subject of this Review Application could not in any event have been ventilated upon that application; and

d. The Applicant was self-represented in respect of the Creditor's Petition.

1. I accept that the applicant was self-represented in respect of the Creditor's Petition. Although I do not wish to underestimate the difficulties that may be faced by self-represented litigants, I am not satisfied that this is sufficient explanation for the delay. Self-representation before this Court is not uncommon and different timeframes do not apply in such circumstances. Although the basis for the Interim Application is complex, its basis was raised (at least to some extent) by Kashaya before the Registrar in the hearing on 1 August 2023, when Kashaya challenged Seth's capacity to file the Creditor's Petition as a "Tutor" when Dr Grant was deceased (Seth's Court Book, p 687). It is apparent that Kashaya has, at earlier times, had access to some form of legal assistance. This includes assistance in her application to set aside the Bankruptcy Notice (Seth's Court Book, p 658). She was granted adjournments to seek legal advice in relation to the Creditor's Petition. She told the Registrar that she had done so at the hearing on 1 August 2023 (Seth's Court Book, p 678). I am not persuaded that the view taken by her Counsel, some time later, sufficiently explains the delay. As was submitted by Mr Connor, there also appear to have been months of delay after Kashaya's legal representatives turned their minds to the issues relied upon (Affidavit of Kate MacDonald dated 5 July 2024 at [2]).
2. It follows that the significant delay in this matter has not been adequately explained. This weighs against the extension of time.

ACTIONS TAKEN ON THE FAITH OF THE SEQUESTRATION ORDER AND POTENTIAL PREJUDICE

1. Mr Connor submitted that, on the faith of the sequestration order, Seth has brought a notice of motion in the Probate proceedings seeking to have those proceedings dismissed. Kashaya resists the relief sought in that notice of motion. Seth has given evidence that his costs of those proceedings since Kashaya was made a bankrupt are $156,451.53, including disbursements: Seth's Affidavit dated 18 September 2024 at [8].
2. Relying upon an affidavit of Christopher Palmer dated 16 September 2024, Mr Connor submitted that the Trustees are not presently funded. Work has been undertaken in the administration of the bankrupt estate, to the value of $94,164.59 (ex GST), none of which has been paid. The Trustees have also incurred legal expenses, the unbilled value of which was indicated to be $37,192 (ex GST) at the time of the affidavit.
3. Mr Connor observed that in Fang at [39], the debtor accepted that inherent in applications for review of sequestration orders is general prejudice to the body of creditors and the administration of the bankrupt estate. He submitted that this principle applies to the present case, where the Trustees are presently unfunded and their remuneration and expenses will be wasted if the sequestration order is set aside.
4. The evidence relied upon by Seth in this regard has some limitations. It has not been demonstrated that all of the costs identified are attributable to Kashaya's delay (as opposed to costs associated with proceedings more generally, including the review sought of the sequestration order). However, I accept that substantial costs have been incurred by the Trustees and Seth on faith of the sequestration order that are attributable to the delay. So much is obvious, and not unexpected given the magnitude of the delay under consideration. There is no evidence before me that Kashaya proposes, or is able, to meet those costs. There was some suggestion from Ms Nolan that such costs ought to be met by Seth. This hardly seems fair, in circumstances where costs have been occasioned by what has been found to have been a significant and inadequately explained delay on Kashaya's part.
5. Ms Nolan submitted that I should also take into account the potential effect upon Kashaya of declining to extend time. Kashaya's bankruptcy stands in the way of her contestation of the applicable will in the Probate proceedings. This may affect other beneficiaries and also the public interest in testamentary intentions being carried out. Ms Nolan also submitted that the bankruptcy has stood in the way of a family provision claim, although did not develop this submission with specificity by reference to law.
6. I accept that the effect upon Kashaya and her ability to prosecute other proceedings is a matter that may be taken into account. Kashaya's continued bankruptcy is a potential impediment at least in relation to the Probate proceedings. I note that Kashaya seeks alternative orders in the Interim Application under the Act bearing upon the ability to contest matters relevant to the Probate proceedings. This is in the event that the extension of time or the review application are unsuccessful. However, the parties have chosen not to address me on that part of the application at this stage of the proceeding.
7. In any event, there are potentially sound reasons of policy behind the limitations on a person in bankruptcy's ability to bring proceedings and also the carve outs to this that are permitted by law. Although the potential effect upon Kashaya's rights is serious, so too is the potential effect upon Kashaya's creditors, as well as upon Seth and the Trustees who have taken action on faith of the sequestration order that Kashaya delayed a considerable period before challenging.

1. In summary, I understand Kashaya contends that the sequestration order ought to be set aside on the following bases:

(a) Seth's role is misdescribed in the Bankruptcy Notice;

(b) the underlying judgments were stayed, with the result that Seth was unable to enforce them without leave;

(c) Seth was not empowered to seek issue of the Bankruptcy Notice;

(d) there is a possible cross-claim; and

(e) there is a potential issue with service of the Creditor's Petition.

Misdescription of Seth's role in the Bankruptcy Notice and the contended stay of the judgments

1. In written submissions dated 2 September 2024, Ms Nolan contended that the power to enforce the judgments "vested in Seth Grant as the Special Administrator appointed to the Estate of the Late Alan Grant". She contended that "Alan Grant by his Tutor Seth Garran Niels Grant" was therefore unable to enforce the judgments that are the subject of the Bankruptcy Notice and Creditor's Petition.
2. Ms Nolan observed that a bankruptcy notice was unable to be issued except on application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of s 40(1)(g) of the Act, "being a judgment or order the execution of which has not been stayed". She referred to various authorities for the proposition that the requirement that execution on the judgment not be stayed has been consistently construed to mean that a person who may issue and serve a bankruptcy notice in compliance with the Act is a judgment creditor who has the immediate right to issue execution on the judgment. Such authorities included Abigroup v Abignano [1992] FCA 567; (1992) 39 FCR 74 (Abigroup) at 80. Ms Nolan observed that the judgment creditor must be able to issue execution on the judgment at the time of issue of the bankruptcy notice and that right must continue up to the time of service: Re Moss; Ex parte Tour Finance Limited (1968) 13 FLR 101; Re Schekeloff; Ex parte Schekeloff v Hopkins Group Pty Ltd [1989] FCA 122; (1989) 86 ALR 645 and Paterson v Commonwealth [1990] FCA 316; (1990) 23 FCR 412. Ms Nolan observed that where the judgment creditor is not in a position to issue immediate execution, execution is deemed to be stayed: Re Pannowitz; Ex parte Wilson (1975) 38 FLR 184 at 188; Re Richards; Ex parte Sommers (1947) 14 ABC 112; Abigroup at 80; Cawood v Cawood [2000] FCA 1786; (2000) 27 Fam LR 403 (Cawood).
3. I accept that an immediate ability to issue execution, without requiring leave or such other intermediate step, is necessary in order for s 40(1)(g) of the Act to be met. The question, then, is whether the judgments were relevantly stayed or whether Seth was otherwise unable to issue execution at the time the Bankruptcy Notice was issued and served.
4. Ms Nolan submitted that at this time, "Alan Grant by his Tutor Seth Garran Niels Grant" could not commence or carry on proceedings for the enforcement of the relevant judgment debts. This is because Dr Grant was deceased. Seth was no longer his tutor but acting in a different capacity on behalf of his estate. Ms Nolan submitted that the judgments were effectively stayed by reference to r 39.1(1) of the UCPR, which provided:

39.1 Circumstances in which issue of writ requires leave (cf SCR Part 44, rule 2)

(1) A writ of execution may not be issued in the following circumstances except by leave of the court -

(a) if there has been any change in the persons entitled or liable to execution under the judgment, whether by assignment, death or otherwise,

(b) if the judgment is against the assets of a deceased person coming to the hands of an executor or administrator after the judgment took effect, and the writ is against those assets or any of them,

(c) if a person's entitlement under the judgment is subject to fulfilment of a condition,

(d) if the writ is a writ for the possession of land,

(e) if the writ is against property in the hands of a receiver appointed by the court,

(f) if the writ is against property in the hands of a sequestrator,

(g) if the writ is in aid of another writ of execution.

1. Ms Nolan did not specify which subparagraph was relied upon in written submissions filed prior to the first day of hearing. Mr Connor's understanding, expressed in written submissions, was that s 39.1(1)(a) was relied upon. However, as was observed by Mr Connor, it is unclear what "change" could be said to have been effected in the persons entitled or liable to execution under the judgments. Although a death did occur, it occurred prior to the date of the relevant judgments.
2. In oral submissions, Ms Nolan contended that there were two ways in which change occurred. The first was on death and the second was said to have been the fact of the appointment of the special administrator. However, both of these events occurred prior to the judgments being delivered. There was therefore no "change" in the persons entitled or liable to execution under the judgments between that time and the time that the Bankruptcy Notice was served.
3. Ms Nolan relied upon the case of Robert Beson v Robert Wiliam Dean [1997] FCA 1320 as being "directly on point". However, that case concerned a judgment debt owed to a particular entity that had been assigned. There was therefore, clearly enough, a "change" in the person entitled to execution.
4. Ms Nolan also relied upon the case of Reasonable Endeavours Pty Ltd v Dennehy [2001] FCA 188. In that case, leave was required to enforce the judgment because of the time that had elapsed since the judgment. This is not the case here.
5. Ms Nolan further relied upon the case of Cawood. Again, that case involved a rather different situation to the present. In order to issue execution, the judgment creditor had needed to obtain from the Court an enforcement order provided for under the applicable family law rules.
6. Ms Nolan then relied upon Thomas Richard Wenkart v Gennaro Abignano & Anor [1998] FCA 162 and Tzovaras v Jeandin [2014] FCCA 2039. In the former case, enforcement was contingent upon an undertaking that had not been given at the date of the bankruptcy notice. In the latter, there was change in the persons entitled to execution by reason of an assignment.
7. Having regard to the above, I am not persuaded that a case of sufficient merit has been demonstrated by reference to s 39.1(1)(a) of the UCPR.
8. However, the fact remains that Seth's capacity was misdescribed in the Bankruptcy Notice. Seth could not have been acting as Dr Grant's "tutor" at the relevant time, as Dr Grant was deceased.
9. Mr Connor relied upon Swart v Carr (No.2) [2008] FMCA 1204 (Swart) (in respect of which an appeal was dismissed in Carr v Swart [2008] FCA 1495). In Swart, a complaint was made by the debtor that the bankruptcy notice inappropriately referred to him in a capacity referrable to a business. This complaint was dealt with by Smith FM at [13]-[15] as follows:
   1. As Mr Swart points out, there has never been any doubt about the identity of the debtor named in the bankruptcy notice, nor as to his personal liability under the Supreme Court judgment, nor that the judgment entered against Mr Carr made reference to his business name. Moreover, the Court of Appeal judgment repeated that description, as did Mr Carr's own application to the High Court.
   2. On one view, it was appropriate, even necessary, for the name of the debtor in the bankruptcy notice to replicate the name of the judgment debtor shown in the certificate of judgment attached to the notice. I am of that opinion. Even if there was a misnomer of some sort, it was not a defect going to any essential requirement of a bankruptcy notice. It gave rise to no ambiguity or uncertainty in its description of the debtor, nor as to the liability relied upon (compare Matheson v Scottish Pacific Business Finance Pty Ltd [2005] FCA 670 at [10]).
   3. If there was any irregularity under the prescribed form of bankruptcy notice, then at most there was an irregularity which, in my opinion, could and should be addressed under s.306 of the Bankruptcy Act. I do not accept the submission of Mr Carr that to apply that provision would be inconsistent with Adams v Lambert [2006] HCA 10; (2006) 228 CLR 409. Indeed, in my opinion that judgment supports my opinion that the description of the debtor gave rise to, at most, a formal defect or irregularity, and that considering all the circumstances it is appropriate to conclude that the defect would not cause substantial injustice in the sense recognised under authorities concerning I, therefore, do not accept that the bankruptcy notice was invalid, nor that Mr Carr's failure to comply with it cannot be relied upon by Mr Swart in this petition.
10. Mr Connor also relied upon other cases in which misspelling or other misdescription have been found not to have invalidated a bankruptcy notice, or to have been capable of cure under s 306 of the Act: see Viavattene v Birch [2015] FCCA 2676 at [13]- [18] and the cases cited therein.
11. Mr Connor submitted that, as in Swart, there was no doubt at the time the Bankruptcy Notice was issued regarding the underlying liability, nor the capacity in which Seth was operating (even if this was not correctly described in the Bankruptcy Notice). Both Seth and Kashaya were aware that Dr Grant was, by that time, deceased and that Seth was seeking to enforce the debts on behalf of his estate. This was a role that Seth had occupied in the proceedings resulting in the relevant judgments, even if his role was unfortunately described in the orders relied upon and, consequently, the Bankruptcy Notice. To the extent that this resulted in irregularity, Mr Connor submitted that this was capable of remedy under s 306 of the Act in a similar manner to that considered in Swart.
12. There is apparent force to Mr Connor's submissions. Consideration of whether there is a "formal defect or irregularity" for the purposes of s 306 requires consideration of "whether the defect or irregularity is one that could reasonably mislead the debtor": Commonwealth Bank of Australia v Horvath (Junior) [1999] FCA 143; (1999) 161 ALR 441 (Horvath) at 10. If it could not, then it is a formal defect potentially capable of validation by s 306 (absent "substantial injustice" or demonstration that the bankruptcy notice fails to meet an essential requirement of the Act).
13. It is by no means clear that the description of Seth's capacity in the Bankruptcy Notice was capable of misleading Kashaya in the requisite sense, or causative of "substantial injustice", given her role and therefore knowledge of Seth's capacity in the related proceedings. This is in circumstances where, although Seth's capacity was misdescribed in the orders made on 28 October 2022 and 1 December 2022, the underlying reasons for judgment dated 28 October 2022 identified Seth's role as "Representative of the Estate of Alan Grant".
14. I should note that I do not wish to be taken as making any criticism of any person involved in the drafting and entry of the Supreme Court orders. The most likely reason the orders did not reflect Seth's role at the time of the judgments is that the parties did not take steps to formally regularise the status of the parties. I have some sympathy for this position. Despite my request that the parties address the first respondent to the Interim Application's role, no one has sought that this be amended or to explain why it is appropriate for Kashaya to, as was put by her Counsel, move "against a non-entity". At most, this seems to have given rise to an objection to Seth responding to the application more generally and to the subsequent joinder application that has been made.
15. The situation is, potentially, complicated by the fact that during this proceeding Seth appears to have sought and obtained an order nunc pro tunc amending his description in the relevant Supreme Court orders. Such a course appears to have been sought by reference to the context of this proceeding: Kashaya's Court Book pp 376-521.
16. Ms Nolan submitted that this should be the end of the matter, because the orders now did not correspond with the Bankruptcy Notice. However, it is unclear how the correction of the orders more than a year later would be capable of misleading Kashaya and/or causing substantial injustice more than a year earlier. In these circumstances, there appears to remain force in Mr Connor's contention that the Bankruptcy Notice was not invalid and was capable of being addressed under s 306 of the Act in a similar manner to that considered in Swart and other cases.
17. Having regard to the above, I am not persuaded that Kashaya's arguments considered under this heading demonstrate that her case is of such merit that this overcomes the considerations against extending time addressed above.

Ability of Seth to seek issue of the Bankruptcy Notice

1. The submissions that have been made on this point have limitations.
2. As set out above, in submissions filed prior to hearing Ms Nolan contended that there could "be no dispute that the purported judgment creditor being, Alan Grant by his tutor Seth Grant, was unable to enforce the judgment the subject of the Bankruptcy Notice and Creditor's Petition" as "[s]ince 11 February 2022, that power vested in Seth Grant as the Special Administrator appointed to the Estate of the Late Alan Grant". However, Ms Nolan subsequently contended that Seth had not had the power to enforce the relevant judgments, in any capacity.
3. In written submissions dated 10 November 2024, Ms Nolan submitted that Dr Grant's estate vests in the NSW Trustee and Guardian: s 61 of the P&A Act. Ms Nolan submitted that the NSW Trustee and Guardian was therefore the relevant creditor. Ms Nolan submitted that "notably absent" from the grant of powers to Seth on 11 February 2022 was the power to enforce judgment in those proceedings, which at that time had not been entered.
4. Ms Nolan submitted that the appointment as an administrator pendente lite did not make Seth Grant a creditor without leave having been granted to enforce the judgment under UCPR 39.1. In written submissions dated 10 November 2024, Ms Nolan cited 3 cases in support of this proposition, namely McInerney, in the matter of Ghougassian v Ghougassian [2020] FCA 1230 at [124(3)], Tzovaras v Jeandin [2014] FCCA 2039 at [20]-[62] and Philips Electronics Australia Ltd v Roberts [2006] FMCA 911; (2006) 201 FLR 359 at [9]-[16]. None of those cases concerned interpretation of the scope of authority granted in relation to the administration of a deceased person's estate.
5. At the hearing on 12 November 2024, Ms Nolan submitted that there was "potential for the estate to be considered to have been vested in this to Seth Grant by virtue of an order that was made in his capacity as special administrator". However, she submitted that "[w]e don't need to really worry about that because there is an anterior requirement, and that is the ability to enforce the judgment". This was said to be because of the need for an order under r 39.1(1) of the UCPR. For the reasons given above, I have not been persuaded of the need for such an order.
6. Later in the hearing, Ms Nolan submitted by reference to the orders made by Slattery J on 11 February 2022:

Then, over the page, at 670, this is the relevant order of 11 February 2022, and you will see that this order has the limitation or the circumscription on the powers, and there is, at 4(c), an order with respect to the collection of the estate. Now, that may feed into section 61 of the Probate and Administration Act, but this court doesn't really need to concern itself with that; that's a different argument as to whether this order amounts to a collection for the purposes of - well, it's a question of statutory construction, and we don't need to go there, but I just flag it in case it's something upon which my friend might want to lay his hat.

But I say it's not the relevant collection, the order with respect to collection to which section 61 speaks, but in any event, we don't need to go there.

1. In reply submissions, Ms Nolan observed that Seth had not been a party to the estate recovery proceedings but had instead had conduct of the proceedings. Ms Nolan submitted that the appointment of a special administrator pendente lite was "for the purposes of collecting one thing, real estate", which did not include an obligation of the kind under consideration. Ms Nolan submitted:

So section 73(1)(a) doesn't cure my friend's woes, it only deals with the ability of Mr Grant to be able to collect real estate. And that's why, in my opening submissions, I said there is a real discussion that we would need to have if we needed to go there as to whether the actual entitlement to this chosen action on this debt, this judgment, is - it vests in the special administrator or if it vests in the ordinary, in the New South Wales public trustee and guardian. And maybe I should dilate upon these in written submissions, if this is something that your Honour has already indicated you might need some assistance on. Because the ordinary is not - pardon the pun - an ordinary creature.

1. Ms Nolan submitted that the issue was of significant complexity and that she would need to take the Court to authorities. However, Ms Nolan did not do so during the hearing. In subsequently filed written submissions, Ms Nolan referred to a decision of Lord Parker in Meyappa Chetty v Supramanian Chetty [1916] 1 AC 603, 608 as authority for the principle that "title to the personal estate, including the title to enforce actions of the deceased vests in the executor named in the will from the date of death". However, it not apparent that this determines the scope of s 73(1)(a) of the P&A Act nor construction of the orders under consideration.
2. It is not clear that the point about s 73(1)(a) being limited to real estate was pressed by Kashaya. The transcript of the hearing on 12 November 2024 indicates that submissions were made that "[p]endente lite is for the purposes of collecting one thing, real estate" and that s 73(1)(a) "only relates to real estate, and this debt is not real estate". However, when Mr Connor suggested at the hearing on 20 November 2024 that the submission made on the last occasion was that "section 73 and special administration only relates to real estate", Ms Nolan responded quite forcefully that this misstated her submissions and accused Mr Connor of slurring her. In any event, I am not persuaded that s 73(1)(a) of the P&A Act only applies to real estate. The provision empowers the Court, pending (inter alia) any suit touching the validity of the will, to "appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with such full or limited powers and with or without a bond or sureties as the Court may think right" (emphasis added).
3. I have some discomfort at being asked to interpret the orders of Slattery J, particularly on the basis of the submissions that have been made. As I suggested to the parties at hearing, it seems that the more appropriate course would have been for the parties to have sought clarification of the orders made from his Honour, or otherwise from the Supreme Court, in the event that their scope was disputed. However, this is not something that the parties propose to do. Instead, the parties appear to be seeking that I interpret the scope of his Honour's orders and that I do so without any further procedural step that may occasion delay in the matter.
4. The following is an extract from the orders made by Slattery J on 11 February 2022:

Estate Generally

1. Order, (subject to Order 4 herein) pursuant to s73(1)(a) of the Probate and Administration Act 1898 (NSW) that a grant of special administration in the estate of Alan Grant ("the deceased") who died on 7 November 2019, be made to Seth Garran Niels Grant, limited until the Court makes a grant of probate or administration in relation to the estate of the deceased.

2. Order that the plaintiff Seth Garran Niels Grant be appointed the administrator of the deceased's personal estate and receiver of real estate pending further order of the Court.

3. Note that the plaintiff Seth Garran Niels Grant consents to being appointed as special administrator of the deceased's estate.

4. Order that the grant be limited to:

a) paying all ongoing outgoings, insurances and utilities associated with the assets of the deceased;

b) paying all liabilities of the deceased as at the date of his death;

c) collecting and realising assets of the estate;

d) reimbursing out of estate funds in respect of any expenses paid on behalf of the deceased or his estate, including:

i. Funeral expenses;

ii. Nursing Home fees;

iii. Medical and care expenses; and

iv. Legal cost and fees.

e) The power to sell or convert to cash any assets of the estate required to meet estate expenses;

i. complete any outstanding tax return of the deceased;

ii. obtain a tax file number for the estate

iii. prepare and lodge any ongoing tax returns for the estate;

g) engaging the services of any legal practitioner, accountant or other professional advisor in relation to the administration of the estate where he considers it necessary to do so and to pay from the estate the costs and fees incurred in having those services provided.

1. Note that nothing in the above orders authorises Seth Grant as special administrator to make a distribution of the estate of the deceased, or any part thereof, without the leave of the Court.
2. Publication of Notice of Intention to make application for the appointment of the Killcare Property Special Administrator is dispensed with.
3. The administration bond and sureties with respect to the appointment of the Killcare Property Special Administrator are dispensed with.
4. Order pursuant to r7.10 Uniform Civil Procedure Rules (NSW) 2005 that Seth Garran Niels Grant be appointed to represent the estate in proceedings 2021/339080 in this Court ("the Probate proceedings").

1. Orders were also made regarding the sale of the Killcare Property, costs and related procedural matters.
2. In written submissions, Mr Connor briefly referenced the associated reasons for judgment delivered by Slattery J: Grant v Grant; Grant v Grant (No. 4) [2022] NSWSC 106. However, no party sought to take me to those reasons in any detail.
3. As noted above, Ms Nolan did not seek to draw attention to the detail of any case regarding interpretation of the scope of a special administrator's powers. In written submissions, Mr Connor cited authority for the proposition that an appointment pendente lite permits the administrator to deal with and protect assets of the relevant estate. This was in contrast with an appointment ad litem, which was concerned with the bringing or defending of proceedings on behalf of the relevant estate: Re Estate of Maria Zbrozek; Duszyk v Morgan - Interim Administrator of Estate of late Maria Zbrozek [2020] NSWSC 1591 at [57]. Mr Connor submitted that s 73(1) of the P&A Act permits a special administrator to deal with personal property: Bollinger v Bell; Estate of Late Colin Bell [2022] NSWSC 486 at [39]; Gooley v Gooley [2020] NSWSC 798 (Gooley) at [147], [155]. He submitted that the duty of administrators pendente lite "is to get in the assets of the estate and manage and preserve them for the benefit of those found to be entitled to those assets": Cvitkovic v Dillon [2023] VSC 701 at [24]. Mr Connor drew attention to the following extract from Gooley at [126]:
   1. The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found in the suit to be entitled to it. The administrator is required to act impartially as between the potential beneficiaries. Section 73 of the PA Act allows the Court to mould the powers of the administrator in a manner best designed to achieve that object in the specific circumstances of the case: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 at [44]-[45], [53] (Debelle J, Anderson J agreeing); Hempseed v Ward [2013] QSC 348 at [14] (McMeekin J).
4. Mr Connor focussed on provision in the 11 February 2022 orders generally for "collecting and realising assets of the estate" and upon "engaging the services of any legal practitioner... in relation to the administration of the estate where he considers it necessary to do so" as providing scope for the enforcement action that had been undertaken.
5. In subsequent submissions, Mr Connor emphasised that the orders had not been made in a vacuum. He observed that they were made in a context where Seth was acting for the estate in the relevant proceedings. The notion that the Court would issue judgments and make orders pertaining to Seth's capacity, but not intend that the orders would be able to be enforced, was suggested to be unlikely. Consistently with this interpretation, Mr Connor relied upon the more recent orders that had been made by Slattery J in response to Seth's application. Mr Connor observed that the application had been made in the context of (and by reference to) his steps to enforce the judgments through issue of the Bankruptcy Notice.
6. Ms Nolan did not take the Court to other authorities, in any detail, on the scope of the authority. In oral submissions on 20 November 2024, she expressed that Gooley did not answer the question. She submitted (inter alia) that:

There is no entitlement to enforce. It's basically a person who maintains the status quo. They have the power to control, and manage, a person's estate. Including, like, bank accounts, and their business, and any bills. The payment of bills and management of monetary affairs. But they can't make decisions about the personal estate. So I haven't come here, today, to argue that for you, but that is the correct position. And so the administrator is not in the position to enforce...

1. Ms Nolan referred to s 61 of the P&A Act, which deals with the vesting of an estate in the NSW Trustee "until probate, or administration, or an order to collect is granted". Ms Nolan submitted:

I anticipate, and it's not a - it doesn't seem to be in my friend's submissions - but I anticipate there may be a contention that there was an order to collect made by Slattery J. There wasn't, because the order made by Slattery J, with respect to section 73(1)(a) can only be an order to collect within the confines of that provision. And that provision only allows an administrator of personal estate. A receiver of real estate, but an administrator of personal estate. So there can - you can't collect personal estate as an administrator.

1. Ms Nolan submitted that Seth had been granted "no power to collect, and enforce" the judgments. She submitted that consideration of what an administrator is entitled to do would require consideration of the common law, but that there was "no real consideration at this point in time because there are too many permutations and commutations on an argument that hasn't even arisen for consideration yet". Later in the hearing, Ms Nolan submitted:

And in terms of the future question of the judgment as to its enforceability, there is a real question, and it's a serious one which needs to be tried in the proper forum and that forum is not this court. But what I have done is sufficient to satisfy the court that there is a real argument that enforcement can't just be brought today or the next day or next week. It - the contestation with respect to the will would need to be argued, or there would need to be made - as there often is made - an order to collect in favour of the public trustee and guardian because that's what an order to collect is. It's not - a person such as Mr Grant, in his capacity as an administrator for the purposes of - you know, for now pendente lite, it was specifically with respect to the contestation proceedings is not the type of order to collect that is being referred to in section 61. But I don't need to persuade your Honour of that because that issue is not before you. I merely need to say that it's arguable. It's not hopeless. In fact, it's seriously arguable.

1. Ms Nolan submitted that before Mr Grant may be in a position to enforce the judgments again, he may well be removed as the special administrator and that "the judgment, that he has just had changed to be in his name, may not even be actionable by him or the future administrators".
2. I do not consider that I have been addressed fulsomely by either party on the question of Seth's ability to seek issue of the Bankruptcy Notice. Ms Nolan appears to have considered that it was unnecessary to develop the point further in the context of the present application. If so, that is a forensic decision that has been made.
3. As set out above, Ms Nolan's submissions focussed upon what were said to be the general limitations regarding appointment of an administrator pendente lite. The authorities referenced by Mr Connor do suggest restrictions upon the role of an administrator pendente lite, but also some level of flexibility in moulding the powers of such an administrator (subject to the control of the Court). In at least one of the cases, it was considered necessary to hear from the parties about whether a specific carve out would be appropriate preventing the administrator from enforcing certain debts (Gooley at [147]). In the present case, the orders relied upon by Seth were broadly expressed and I have had limited submissions regarding their interpretation. Ms Nolan submitted that the order regarding collection did not have in contemplation the orders sought to be enforced, which were yet to be made at that time. However, the possibility of such orders, which were sought in that proceeding, would presumably have been apparent. Ms Nolan's submission also does not refute Mr Connor's point about the generality of the orders, which were not expressly limited to pre-existing property.
4. Although I would have preferred for any dispute about the scope of the powers afforded to Seth to have been pursued and determined in the Supreme Court, from what I have been told by the parties Slattery and Meek JJ are aware of this proceeding and its origins regarding the Bankruptcy Notice. Justice Slattery has made orders following an application by Seth (in his capacity as special administrator) within the context of this proceeding. I am given to understand that Meek J is awaiting the result of this proceeding and that associated delays are delaying the adjudication of proceedings in the Supreme Court.
5. Ultimately, and in the absence of more fulsome submissions, accompanied by detailed consideration of the materials and law, I am not persuaded that the merit of the point outweighs the considerations against extending time. This arises in a particular context. That context is one in which I have, on more than one occasion, suggested that further assistance might be needed on this point and that I did not consider that the point had been comprehensively addressed. It is one in which the parties have had multiple opportunities to make submissions on the issue. The context is also one in which the parties, as I understand it, are now urging that a decision be made without the making of further submissions on this question.
6. The above considerations regarding merit are to be weighed against a delay of the magnitude considered in this case, with the accompanying detriment to the Trustees, creditors and Seth that has been caused by the delay and is not proposed to be remedied (and it appears may not be able to be remedied) by Kashaya. I am not persuaded it has been demonstrated that the merit of this point outweighs the serious matters tending against the extension of time in this case.

1. In oral submissions on 12 November 2024, Ms Nolan referred to a "real and effective cross-claim". In this context, reference was made to the family provision claim although I understood Kashaya also to be relying upon her claim in the Probate proceedings. I did not understand this to be raised in a sense referable to s 40(1)(g) of the Act, and Ms Nolan did not address mutuality or other considerations that would arise in the context of such an argument. The evidence before the Court does not establish that any cross-claim exceeds the value of the judgment debts.
2. There is evidence before the Court indicating that any claim Kashaya may have in the Probate proceedings is well below the debts specified in the Bankruptcy Notice: Seth's Affidavit dated 11 November 2024. Ms Nolan observed that this evidence has been challenged by Kashaya and submitted that a number of matters could feed into the value of the estate in the Probate proceedings, including the possibility that it be ordered that money be repaid to the estate. There are references in the evidence to Kashaya's views about how much she considers that her claims have been worth. However, I was not taken to any clear, objective evidence that the value of Kashaya's claim in the Probate proceedings exceeds the amounts that were the subject of the Bankruptcy Notice. Nor was I taken to such evidence in relation to the family provision claim.
3. In any event, I understood that the reference to a "viable cross-claim" was intended to address an argument made by Mr Connor regarding futility. Mr Connor had submitted that the Court would consider the utility/futility of dismissing the Creditor's Petition in circumstances where Kashaya has not made an application to set aside the judgments, cannot satisfy the judgments and has no means to pay her other creditors.
4. If the sequestration order is set aside, then it is possible (albeit not necessarily likely) that Kashaya may pay the judgment debts, or otherwise defeat bankruptcy proceedings. In this sense, I accept that futility has not been demonstrated.
5. I also accept that there is some possibility (however remote) that Kashaya may be able to establish an ability to pay her debts, or other sufficient cause that a sequestration order ought not to be made, if time is extended and she is given further opportunity to do so. However, the evidence before me does not indicate Kashaya's case in that regard is of such merit that it ought to overcome the considerations against granting an extension of time.

1. As noted above, in correspondence Kashaya's solicitor made a submission suggesting that service of the Creditor's Petition may be challenged on the basis that it had occurred "within the precincts of the Court". This was said to be "contrary to established principles". It was submitted that it "may amount to a contempt of court". This submission was not developed subsequently. Although Ms Nolan referred at the hearing on 28 February 2025 to needing to deal with that question in the event that Seth's Associated Application progressed, she did not meaningfully elaborate on the "established principles" or other allegations contained within her instructor's email.
2. Absent development of this point, I am not persuaded of its merit.

1. As set out above, Seth sought leave to reopen his case to rely upon evidence regarding service and related matters regarding which the Court would need to be satisfied under s 52 of the Act in the event that the extension of time were granted. Leave was opposed.
2. As I have not been persuaded to grant the extension of time, I do not consider it necessary for such leave to be granted. Had it been otherwise, leave to reopen would likely have been granted.

1. Through the Associated Application, Seth seeks (amongst other things) that the Court order amendment of the Bankruptcy Notice and Creditor's Petition to reflect his capacity as special administrator, or an order substituting him in this capacity as the petitioning creditor.
2. The development of the basis of this application has been limited. Mr Connor has suggested that the Court has the power to amend both the Bankruptcy Notice and the Creditor's Petition under s 306 of the Act or 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). It is not clear on the face of these provisions that what is sought is within their contemplation and scope. Mr Connor made general reference to the case of Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd [1995] FCA 1387; (1995) 133 ALR 206. However, that case occurred in rather different circumstances to the present. Mr Connor did not direct attention to any case in which either s 306 of the Act or 7.01 of the GFL Rules was invoked by a Court in amending a Bankruptcy Notice (let alone a Bankruptcy Notice issued more than 2 years previously).
3. Mr Connor's submissions regarding substitution of Seth as a creditor in his capacity as special administrator were similarly limited. Reference was made to s 49 of the Act and the case of O'Meara v Hitwise Pty Ltd [2007] FCAFC 114; (2007) 160 FCR 518 at [9]. However, it has not been explained how this could overcome issues with the Bankruptcy Notice had that been found to have been invalid. In any event, as the extension of time has not been granted, it is unnecessary to consider further the extent to which s 49 could be invoked.
4. I do not consider that I have been sufficiently addressed on the question of parties to make other orders sought regarding joinder. As set out above, this part of the application arose following a question I had raised regarding the appropriateness of Dr Grant ("by his Tutor") being described as an ongoing party to the Interim Application. No one sought removal of the first respondent. However, Ms Nolan challenged Seth's standing more generally, suggesting that she had only moved on the first respondent, as a "non-entity", in relation to the relief sought at [1] and [2] of the Interim Application.
5. "Seth Garran Niels Grant as Representative of the Estate of Alan Grant" is listed as the second respondent to the Interim Application. When Ms Nolan moved on orders 1 and 2 sought in that application on the first day of hearing, she did not say that she was not moving against him as a respondent. No objection was made to Mr Connor's appearance for Seth in this capacity (or, indeed, for the first respondent) on the first day of hearing. Issue was only taken in this regard towards the end of the second day of hearing. Ms Nolan did not make clear what she wanted the Court to do with that submission, independent of her submission that "[e]verything should be set aside" because the Court lacks jurisdiction (which I have not accepted for the reasons given above).
6. Seth has been heard, presumably by reference to his capacity as the second respondent. In these circumstances, and in circumstances where I have not been persuaded to extend time regarding the review application, the necessity of an order for joinder at this late stage is not entirely clear. In these circumstances, and in circumstances where the entirety of the Associated Application appears to be vehemently opposed, I have not been persuaded to make the orders sought. This is in circumstances where I am minded to, in any event, dismiss the extension of time application. Further hearing on this issue will cause further delay in a matter that has already been delayed to an unfortunate extent.
7. Ms Nolan submitted that leave should not be granted for reliance upon the Associated Application. In any event, I accept the position advanced by Ms Nolan that the application should be dismissed.

1. Having regard to the foregoing in its totality, I have not been persuaded to extend time in this matter. I have not been persuaded that the case relied upon by Kashaya is of such merit that it overcomes the significance of the delay, which I have found has not been adequately explained. This is in circumstances where significant steps have been taken in the intervening period on the faith of the sequestration order.
2. It follows that the Interim Application will be dismissed insofar as it concerns the relief sought at [1] and [2] of that application. An order will also be made dismissing the Associated Application.
3. I will hear from the parties on the question of costs.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.