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[2024] FCA 1499
Federal Court of Australia
2024-12-20
Cheeseman J
Original judgment source is linked above.
Counsel for the Appellant: The appellant appeared in person
Solicitor for the First Respondent: Elringtons Lawyers
BETWEEN: RALPH GEORGE NOEL NANCY HURST-MEYERS Appellant
order made by: CHEESEMAN J DATE OF ORDER: 20 DECEMBER 2024
INTRODUCTION 1 These reasons address a number of issues arising in the context of an appeal from a judgment of the Federal Circuit and Family Court of Australia (the Federal Circuit Court). The primary judge dismissed an application for review of a sequestration order made by a Registrar against the estate of the appellant, Ralph George Noel Nancy Hurst-Meyers: Hoy, in the matter of Hurst-Meyers v Hurst-Meyers [2024] FedCFamC2G 187 (PJ). 2 The respondent, Gavin Robert Hoy, was the petitioning creditor. The debt upon which the respondent relied in requesting the issue of a bankruptcy notice was a judgment debt in the sum of $220,142.19 (being the amount of a judgment entered in the Supreme Court of the Australian Capital Territory on 6 April 2022 pursuant to an order made by Elkaim J on 30 March 2022). The judgment giving rise to the judgment debt is Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58. An appeal in respect of that judgment was lodged but was dismissed by consent. 3 At the hearing, the appellant appeared in person. The respondent was represented by counsel and an instructing solicitor. 4 The latest iteration of the notice of appeal is the further amended notice of appeal filed on 28 June 2024 (FANOC). This is the third iteration of the notice of appeal. A Registrar of the Court raised concerns in relation to the competency of the first two iterations of the notice of appeal with the result that the appellant was given leave on two occasions to file amended versions of the notice of appeal, culminating in the FANOC. 5 The respondent maintains that the FANOC is not competent and accordingly, has filed a notice of objection to competency which he seeks to have determined at the same time as the appeal. The parties have each served and lodged written submissions addressed to their respective positions on the objection to competency. I listed the respondent's notice of objection to competency to be heard concurrently with the appeal. 6 In correspondence received by the registry in the period shortly before the hearing, it appeared that the appellant may intend to apply to adjourn the hearing, and the respondent may seek to have the appeal dismissed for want of prosecution and default of Court orders. On 12 November 2024 I ordered that any interlocutory applications and supporting material be filed and served by 19 November 2024. 7 Following this order being made, on 15 November 2024 the respondent filed an application seeking to dismiss the appeal pursuant to r 36.74 of the Federal Court Rules 2011 (Cth). The respondent contends that the appeal should be dismissed for want of prosecution having regard to the appellant's breach of the timetabling orders and his failure to bring his appeal forward for hearing. I listed the respondent's application for dismissal for want of prosecution to be heard concurrently with the appeal. 8 The day before the hearing, the appellant sought to file a document styled as a response to the respondent's chronology, comprising short submissions and an annexure. No orders were made granting leave to file this document but I directed the Registry to accept the documents for filing given the imminent commencement of the hearing and the need to have the documents available in order to determine any oral application the appellant may make in relation to them. When the hearing commenced the respondent submitted that this document was of no assistance to the Court and should be disregarded. I will address the substance of the documents filed by the appellant on 16 and 17 December in more detail below. 9 The appellant did not file an application for an adjournment. At the hearing, the appellant did not make an oral application for an adjournment.
MATERIAL BEFORE THE COURT 10 The appellant is in breach of the timetabling orders. As a consequence of the appellant's default, I made orders relieving the respondent from complying with those steps in the timetable that were responsive to the steps with which the appellant had not complied. 11 One of the procedural orders with which the appellant did not comply was for the filing and service of appeal books. Order 7 of the orders made on 11 July 2024 required the appellant to file and serve Part C of the appeal book 10 days before the hearing. Relevantly, there was no extension granted. 12 On 19 November 2024, the appellant e-lodged a document described as "Submissions" purportedly in compliance with the order for submissions in opposition to the respondent's notice of objection to competency. This document comprised four pages of submissions but annexed 772 pages, which as best I could ascertain appeared to be the appellant's attempt to produce an appeal book. He supplemented these pages by e-lodging a further two batches of documents, 47 pages and 30 pages respectively. In total he e-lodged 853 pages which he described when lodging the documents as submissions. He did not have leave to file these documents, and the documents should have been rejected by the registry. After determining objections at the start of the hearing, this collation of documents became the appeal book. 13 On 9 December 2024, the appellant emailed the registry and respondent advising that he was having trouble lodging Part C of the appeal book and as a result provided a link to download the appeal book. The registry was unable to download the appeal book and requested the appellant to email the appeal book as an attachment. The appellant was unable to provide the appeal book as an email attachment (due to file size) and subsequently the registry requested the appellant to upload the appeal book to a Court designated file share site. He failed to upload the appeal book to the file share site. 14 It appears that the respondent received the documents that the appellant was attempting to file. The respondent wrote to the Court objecting to the documents being accepted as the appeal book and informing the Court that the respondent had had no role in the preparation of the appeal book and had only seen the proposed appeal book when the appellant attempted to file the document with the Court. In an email chain between the appellant, the registry and the respondent, the appellant said that the documents in the appeal book had been previously provided to the Court. It appears that the three documents filed as "submissions" on 19 November 2024 were in fact substantially the same documents as the appellant was seeking to present as the appeal book in his later communications. 15 In collating his documents, the appellant declined to collaborate with the respondent and did not provide a copy of the documents until after they had been sent to the registry for filing. The respondent has objected to that compilation of documents standing as the appeal book. 16 The document described as Part C of the Appeal Book referred to in the appellant's email to the registry on 9 December 2024 was not in fact filed until the morning of the hearing. It was lodged for filing at 9:46 am and accepted for filing at 9:48 am - it comprised 857 pages. 17 In addition, on 17 December 2024, the morning of the hearing, the appellant filed two additional documents. The first was a series of email chains from July 2016 comprising 19 pages. It was lodged for filing at 6:13 am as "submissions" and accepted for filing at 9:27 am. The second was a medical certificate from Kambah Medical Centre dated 5 December 2024 which was uploaded to the court file as "correspondence". The appellant had not obtained leave to file these additional documents, whether as "submissions" or otherwise. These documents should not have been accepted by the registry. 18 The appellant first made reference to the two additional voluminous compilations of documents filed on the morning of the hearing in his oral submissions in reply. The documents included in these two compilations appear to comprise additional copies of the documents already included in the appeal book (as designated above), additional copies of documents that were not before the primary judge, and miscellaneous other documents from other proceedings in which the appellant has been involved which were irrelevant to the matters in issue on the appeal. I declined leave for the appellant to rely on these documents. 19 At the commencement of the hearing, after considerable time was spent ascertaining the content of the appeal book, I ruled on the objections taken by the respondent to the appeal book. I ordered that documents which had not been before the primary judge were to be removed from the compilation of documents and that the filleted collation should stand as the appeal book. 20 In addition to the appeal book, the appellant also sought to rely on the document he described as being a response to the respondent's chronology. The document was, in essence, another round of submissions engrossed with references to hearing transcripts and documents not in evidence either before the primary judge or on this appeal and attaching another large collection of documents. In total, it constituted 348 pages. The topics covered in the chronology focused on whether the Residential Contract (defined in paragraph [53] below) and the Partnership Agreement (defined in paragraph [50] below) were validly executed and miscellaneous matters relating to the appellant's earlier involvement in other proceedings related to his dealings with the respondent. Leaving to one side the documents that merely duplicated documents already in the appeal book, insofar as the remainder of the documents constituted documentary evidence, it is evidence that on its face appears to have been available to the appellant at an earlier time. The appellant has not brought an application to adduce further evidence and has not sought to explain why the documents were not put before the primary judge. Being satisfied that this document went well beyond a chronology and advanced submissions on matters which are irrelevant, I will not have regard to this document. 21 For completeness, I note that at no time in the pendency of this appeal, has the appellant brought an application for leave to adduce new or further evidence on this appeal. To the extent that he has attempted to have included in the appeal books, materials that were not before the primary judge, I upheld the respondent's objections. The documents are not relevant to the determination of the appeal which is an appeal by way of rehearing.
ISSUES FOR DETERMINATION 22 Against that background, there are in substance three issues presently before the Court. 23 First, whether the appeal is competent. The appellant bears the onus of establishing that the appeal is competent. 24 Secondly, whether the appellant has established error on the part of the primary judge by reference to any of the grounds of appeal (to the extent that any grounds are demonstrated to be competent). 25 Thirdly, whether the appeal should be dismissed under r 36.74 of the Rules for the appellant's failure to prosecute the appeal including by reason of his breach of Court orders. 26 It is convenient to address the objection to competency and the appeal proper together. The argument before me proceeded on that basis. It will only be necessary to consider the application to dismiss the appeal for want of prosecution if the appeal is competent and is not otherwise dismissed on the merits.
APPLICABLE PRINCIPLES 27 I will address the applicable principles in the following order. I will first address the nature of an appeal brought pursuant to s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act) including the requirements imposed under the Rules in relation to the notice of appeal. I will then move to address the principles in relation to the determination of whether an appeal is competent. Finally, I will address the principles which apply in relation to an application to dismiss an appeal under r 36.74.
Appeal by way of rehearing 28 As mentioned, the appellant appeals from a judgment of the Federal Circuit Court pursuant to s 24(1)(d) of the FCA Act. The appeal is conducted by way of rehearing, it is not conducted de novo, nor is it an appeal in the strict sense: Cheung v Burness (Trustee) [2016] FCA 1381 at [71] (Moshinsky J) and the authorities cited therein. 29 On an appeal by way of rehearing, the appellate court's powers are exercisable only if the appellant can demonstrate error of fact or law in the judgment under appeal: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCAFC 1833; 117 FCR 424 at [22]-[25] (Allsop J (as his Honour then was), Drummond and Mansfield JJ agreeing). 30 An appellate court conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ).
Objection to competence 31 Rule 36.01(2)(c) of the Rules provides: (2) The notice of appeal must state: … (c) briefly but specifically, the grounds relied on in support of the appeal; … 32 In CJR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1599 at [15]-[16], Logan J considered the application of r 36.01(2)(c): 15 Rule 36.01(2)(c) of the Federal Court Rules 2011 (Cth) requires that grounds of appeal be stated briefly, but specifically. There is authority that, if a notice of appeal is incomprehensible or entirely unrelated to the issues dealt with in the judgment under appeal, an appeal may be incompetent: see Zegarac v Dellios [2007] FCAFC 58 and SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 165. 16 The question of comprehensibility is always one of substance, not form. No special or different rule of court is applicable on this subject to litigants in person, see SZJJC v Minister for Immigration & Citizenship [2008] FCA 614. That is but a particular example of a general practice in relation to litigants in person: see Tinkler v Elliott [2012] EWCA Civ 1289, a judgment of the Court of Appeal for England and Wales, the observations in which have been cited with approval by a number of judges of this Court, including me: see Ioannou v Commonwealth of Australia (Department of Human Services) [2012] FCA 1228; O'Donoghue v Australian Information Commissioner [2012] FCA 1219; Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180; Ejueyitsi v Bond University [2012] FCA 1514. 33 In Giddings v Australian Information Commissioner [2017] FCAFC 225 at [9], the Full Court (Collier, Flick and Charlesworth JJ) observed that this rule "serves to direct the attention of the Court and the Respondent to the appeal to alleged appellable errors said to have been committed by the primary Judge and to focus upon the issues sought to be pursued on appeal." In concluding that the grounds of appeal in that case were not competent, the Full Court said at [9]: The present Grounds of Appeal provide no real insight into the errors said to have been committed by the primary Judge and seem more directed to impermissibly seeking on appeal to re-litigate the issues otherwise canvassed and resolved at first instance. 34 Rule 36.72 provides for the competency of an appeal to be challenged by filing a notice of objection to competency that, briefly but specifically, states the grounds of the objection: r 36.72(1)(b). 35 The appellant carries the burden of establishing the competency of an appeal: r 36.72(2). 36 If the Court decides that an appeal is not competent, the appeal is dismissed: r 36.72(5).
Dismissal for want of prosecution 37 I recently summarised the legislative framework and applicable principles in relation to the exercise of the power to dismiss proceedings for want of prosecution in Murabito v Westview Frames and Trusses (NSW) Pty Ltd [2024] FCA 1385 at [10]-[19]. I will not repeat that summary here. To the extent that it is necessary to determine the respondent's application for dismissal for want of prosecution, I adopt and apply that summary of the applicable principles.
THE GROUNDS OF APPEAL 38 The grounds of appeal in the FANOC are as follows (as written): (1) Mr. Hurst-Meyers' defence is the "Contract of Sale" (Residential Contract) signed by all parties, and relevant parts were ignored by Manousaridis J. (2) Manousaridis J did not make a finding of fact that Mr. Hurst-Meyers assets exceeded the judgement & costs amount. (3) Under s 52(1) & s 52(2) & s 52(3) of the Bankruptcy Act and the Bankruptcy Rules, Manousaridis J did not make a finding of fact with the value of the assets of Mr. Hurst-Meyers. (4) Mr. Hurst-Meyers consistently relied on the "Contact of Sale" for the land being $250,000 and the deposit being $200,000, which was an error in a finding of fact by Manousaridis J. (5) Manousaridis J left out Mr. Evelyn's actions, who is the solicitor for Mr. Hoy, who did not act properly. (6) No sanctions for sabotaging the sale of Mr. Hurst-Meyers assets were properly addressed by Manousaridis J. (7) Mr. Hurst-Meyers did not believe his valid medical certificate was properly acknowledged. (8) Manousaridis J ignored the valid, signed Contact of Sale that supported Mr. Hurst-Meyers position, but upheld selected parts of this contract for Mr. Hoy's benefit. (9) Manousaridis J ignored evidence. (10) Manousaridis J dismissed evidence relevant for Mr. Hurst-Meyers position. (11) Mr. Hoy breached the terms and conditions of the Contract of Sale which was ignored by Manousaridis J. 39 The grounds fall into the following categories and I will deal with them collectively within each category: (1) The Residential Contract Grounds (referred to variously as the Contract of Sale) - grounds 1, 4, 8 and 11; (2) The Net Asset Position Grounds - grounds 2 and 3; (3) The Alleged Misconduct Grounds - grounds 5 and 6; and (4) The Evidence Grounds - grounds 7, 9 and 10.
THE NOTICE OF OBJECTION TO COMPETENCY 40 The respondent raises 11 grounds of objection to the competency of the appeal. By his grounds of objection, the respondent contends that for a variety of reasons, none of the grounds of appeal in the FANOC identify any appellable error on the part of the primary judge. I will address the specific grounds of objection in considering each of the grounds of appeal according to the categories I have identified above.
THE PRIMARY JUDGMENT 41 The necessary starting point in an appeal by way of rehearing is to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. In the interests of consistency in nomenclature, I will continue to refer to Mr Hurst-Meyers as the appellant, noting that he was the applicant in the review application before the primary judge. In extracting quotes from the primary judgment in these reasons, I have corrected typographical errors in relation to the spelling of the appellant's surname. 42 The primary judge correctly instructed himself as to the task his Honour was required to perform pursuant to s 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)in conducting a de novo review of orders made by the Registrar on 29 September 2023, which included an order that the appellant's estate be sequestrated: PJ [1], [4] to [7]. None of the appeal grounds in the FANOC allege error in the manner in which the primary judge apprehended his statutory task. 43 His Honour next identified the act of bankruptcy relied upon and that the appellant did not dispute that the respondent had satisfied the preconditions for the making of a sequestration order under the Bankruptcy Act 1966 (Cth) and the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (Bankruptcy Rules). None of the appeal grounds allege error on the part of the primary judge in correctly identifying that these matters were common ground. 44 The primary judge then identified that in substance the appellant sought to resist a sequestration order being made against him on two bases. 45 First, the appellant contended that a sequestration ought not be made against him because he maintained that he was able to pay his debts. The primary judge recorded that in his notice of grounds of opposition to the creditor's petition, the appellant's contention was that he was solvent. Appeal grounds 2, and perhaps 3, appear to relate to this aspect of the proceeding before the primary judge. Ground 3 introduces reference to ss 52(1) to (3) of the Bankruptcy Act and the Bankruptcy Rules generally. By reference to the evidence before him, the primary judge addressed proof of the matters in s 52(1) of the Bankruptcy Act and the Bankruptcy Rules at PJ [8] to [12]. The primary judge concluded that the respondent had proved the matters he was required to prove under s 43 and s 52(1) of the Bankruptcy Act and the Bankruptcy Rules: PJ [13]. Accordingly, the primary judge concluded that, subject to the matters on which appellant relied, a sequestration order may be made against his estate: PJ [13]. 46 Secondly, the primary judge recorded that at the hearing, the primary judge understood the appellant to rely on an additional or broader ground, relating to the alleged conduct of the respondent's lawyers which the appellant contended prevented him from selling a property or properties in which he has substantial equity and using the proceeds of sale to pay the judgment debt: PJ [14]. Appeal grounds 5 and 6 appear to be directed to this part of the proceeding before the primary judge. 47 The primary judge addressed the matters on which the appellant relied from PJ [14] of his reasons. The primary judge structured his reasons as follows (at PJ [15]): … First, I will identify the affidavits that were read at the hearing, and the basis on which I read those affidavits. Second, I will identify the affidavit [Mr Hurst-Meyers] provided after the hearing, pursuant to leave I granted him at the hearing. Third, I will set out in narrative form the course of the proceeding or proceedings in which, [Mr Hurst-Meyers] submits, Mr Hoy, through his lawyers, prevented Mr Hurst-Meyers from realising his property or properties to pay the Judgment. (In that section of my reasons, unless the context suggests otherwise, unqualified statements of fact are to be taken to reflect findings of the facts stated.) Fourth, I will identify, and then consider, the grounds on which Mr Hurst-Meyers relies for claiming that a sequestration order should not be made. 48 After identifying the evidence at PJ [15] to [18] and [72], and the approach his Honour intended to take to the evidence, his Honour moved to setting out his findings on the history of the dealings between the appellant and the respondent and the litigation in which they had been involved: PJ [19] to [47]. Having regard to the matters canvassed in the grounds of appeal it is not necessary to set out in detail the findings made by the primary judge. To the extent that the appeal grounds appear to contend that the primary judge erred in failing to make findings of fact or in not properly addressing, ignoring, or dismissing evidence, I will come to the particular evidence in my consideration of the particular grounds of appeal. 49 There is one matter of context that it is important to note at the outset concerning the contractual relationships between the appellant and the respondent and the litigation which has ensued in relation thereto. The following account is drawn from the reasons of the primary judge and is not controversial. In grounds 1,4, 8 and 11 of the FANOC, the appellant raises a number of issues in relation to the Residential Contract identified below. I will return to the contentions in these grounds of appeal below. 50 On 18 August 2016, the respondent, the appellant, RHM Industries Pty Ltd, and Assured-Holdings Australia Pty Ltd entered into a Partnership Agreement for the purpose of developing a property in Old Reynella, Adelaide (Reynella Property). At the time the Partnership Agreement was made, the appellant owned the Reynella Property: PJ [19]. 51 The Partnership Agreement provided that the respondent would contribute $200,000 to the partnership, but he could withdraw from the Partnership Agreement at any time and, on his withdrawing, his investment of $200,000 would be returned to him. The respondent paid the $200,000 in three instalments: $179,000 on 19 August 2016, $1,000 on 28 September 2016, and $20,000 on 19 October 2016: Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58 at [36]: PJ [20]. 52 Sometime before 15 September 2017 the respondent informed the appellant that he wished to leave the partnership. The appellant acknowledged this in a text message he sent to the respondent on 15 September 2017 in which he stated that he was seeing "my legal people next week and they'll draw up the withdrawal papers based on our Partnership Agreement", and that, after the respondent signed, dated and returned the withdrawal papers, the appellant would "get the funds to [him]". The appellant sent another text message to the respondent on 1 November 2017 stating that all was "on schedule for your 200k". On 6 May 2019 the appellant sent an email to the respondent in which he said: "Please don't worry. I am working on a solution and will return your investment as per our agreement": PJ [21]. 53 Before entering into the Partnership Agreement the appellant and the respondent, on 19 and 20 July 2016 respectively, signed a Residential Contract to purchase a property (Corn Street Property). The Residential Contract provided for a purchase price of $250,000 (at PJ [22]), and a deposit of $200,000. 54 On 31 July 2019 the respondent commenced a proceeding in the Supreme Court against the appellant and RHM in which he claimed judgment in the amount of $200,000, being the $200,000 he had contributed towards the partnership but which the appellant had not returned, and a declaration that the Partnership Agreement had ended. The appellant defended the claims principally on the basis of the contention that the Residential Contract and the Partnership Agreement constituted a single overriding agreement, and that the Partnership Agreement "was subsequent and subordinate to" the Residential Contract. The appellant counterclaimed alleging that the Residential Contract extinguished the respondent's entitlement to the $200,000 and, moreover, rendered the respondent liable to pay damages to the appellant: PJ [24]. 55 The respondent prevailed and obtained judgment for $220,142.19 (at PJ [26]) and the appellant's counterclaim was dismissed (Hoy v Hurst-Meyers (No 2)). As mentioned, an appeal in respect of that judgment was lodged but was dismissed by consent. 56 The primary judge next summarised in detail the contentions made by the appellant in the various affidavits on which he relied and in his oral submissions. It is convenient to extract this section of the primary judge's reasons in full. In doing so, I note that Mr Evelyn is the respondent's solicitor: 49 In his affidavit of 9 February 2024 [Mr Hurst-Meyers] deposes to or contends the following: (a) Mr Evelyn sabotaged "the sales process for both properties" by "deliberately stopping the sale of these properties, then seeking improper orders to stop any sale". (b) The contract of sale of the Corn Street Property (that is, the Residential Contract) is still valid "and we ask that the terms and conditions be applied which clearly state that [Mr Hoy] is responsible for all charges and fees associated with his withdrawal of this agreement, which would make him liable for all costs." (c) [Mr Hurst-Meyers] has the following assets: (i) The property at 28 Corn Street, Old Reynella. [Mr Hurst-Meyers] says "[w]e were offered in writing as $950,0000 see Annexure 1, and increased to $1,000,000". The offer of $950,000 appears to be a reference to a "Notice of Offer to Purchase Residential Land" dated 8 June 2023, with a proposed settlement date of 8 June 2023. (ii) The property being lot 101 which is "confirmed as legal to sell in writing by the Conveyancing lawyers". That appears to be a reference to a letter dated 28 September 2023 from Mr Darren Rollings, of Fentons Conveyancing, informing Mr Hurst-Meyers that the 28 Corn Street Property "is able to be sold as two separate allotments being proposed Allotment 100 & proposed Allotment 101 in accordance with the attached plan" (emphasis added). (iii) The properties being lots 101 and 100 which had been appraised by Mr Sean Muxlow at $1.35 million and $450,000 respectively. These appraisals are contained in letters from Mr Sean Muxlow of Ouwens Casserly Real Estate to Mr Hurst-Meyers. The properties are subject to a mortgage of $516,552.14, leaving an equity of $1,283,447.86. (iv) A family home at Fisher, ACT, which was appraised at $1,150,000. That is subject to a mortgage of $516,552.14. (v) An investment property at Queanbeyan valued at $1,265,000. That is subject to a mortgage of $352,164.97. (d) On the basis of these figures, Mr Hurst-Meyers states he has an "asset base" of $2,208,728.47 and is "therefore solvent". 50 In his affidavit made on 18 October 2023 Mr Hurst-Meyers deposes or contends as follows: (a) Mr Hoy and his legal representatives have refused to allow Mr Hurst-Meyers to sell his assets, despite being asked many times to permit the sale. This caused Mr Hurst-Meyers' assets "to be legally blocked which rendered these assets unable to be sold up until" 28 September 2023. (b) Mr Hurst-Meyers is not insolvent because he "has the capacity to retire any debt that the Court may order through the sale of his assets". That Mr Hurst-Meyers has been unable to pay his creditors "was due to circumstances beyond [his] control as this control was maintained by [Mr Hoy] and his legal representatives due to an order they sought in the Supreme Court which frustrated the sale process". (c) The Registrar should have exhibited compassion and granted an adjournment "due to 5 heart attacks . . . which were in fact life threatening". 51 At the hearing on 9 February 2024 [Mr Hurst-Meyers] submitted that Mr Evelyn had double counted his costs; that "this has always been a defence of a contract of sale that Mr Hoy signed, and he reneged on"; and by having abandoned that contract Mr Hoy forfeited his deposit, and "all associated costs around his forfeiture are his costs to bear". Mr Hurst-Meyers also made submissions which reflected the contentions he made in his affidavits. Thus, Mr Hurst-Meyers submitted the following: (a) He had decided to pay back Mr Hoy's $200,000; "we went to immediately sell the three apartments in New South Wales, and then that sale was frustrated by the orders put up by Loukas-Karlsson". [Mr Hurst-Meyers] said that this was further frustrated by the contact Mr Evelyn made to Mr Hurst-Meyer's conveyancer, "which caused them to withdraw their services". I find that is a reference to Mr Stasia's email of 24 February 2023 to which I refer above. (b) When Mr Hurst-Meyers simultaneously tried to sell the Corn Street Property, Mr Evelyn "contacted the realtors involved, and also the conveyancing lawyers", and that "caused the seizing up of those transaction". (Footnotes omitted) 57 I interpolate to note that in his submissions on this appeal, the appellant repeated many of the contentions that he had made before the primary judge. In doing so, the appellant exposed that he had no real grasp of the limits of an appeal by rehearing. The appellant's approach was impermissibly to seek on appeal to re-litigate the issues otherwise canvassed and resolved by the primary judge, unconstrained by the requirement to demonstrate error on the part of the primary judge. 58 Having completed a detailed canvas of the factual background, the primary judge identified the principal issues arising for determination as follows (at PJ [52]): (a) Did Mr Hoy, through his lawyer, frustrate [Mr Hurst-Meyer's] ability to realise properties in which he had equity to obtain funds with which to pay the Judgment? (b) Did Mr Hoy enter into a contract to purchase a property and, if so, does this give rise to a reason for "going behind" the Judgment? (c) However (a) or (b) are answered, is [Mr Hurst-Meyers] able to pay his debts? 59 The primary judge first addressed issue (a) and concluded at PJ [55] that he was "not satisfied that Mr Hurst-Meyers manifested any willingness to sell any of his properties for the purpose of using the proceeds of sale to pay the Judgment and, for that reason, I am not satisfied the 3 February Orders, or any conduct by Mr Hoy or his legal representative, materially interfered with any intention [Mr Hurst-Meyers] might have formed to sell any one or more of his properties, and use the proceeds of sale to pay the Judgment". The Alleged Misconduct Grounds (grounds 5 and 6) touch on this topic. 60 The primary judge then turned to consider whether the respondent had entered into a contract to purchase a property and, if so, whether that gave rise to a reason for "going behind" the judgment of Justice Elkaim in the Supreme Court in accordance with the principles identified by the High Court in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 at [16], [37]-[38], [54]-[55], [65]-[67] (Kiefel CJ, Keane and Nettle JJ): PJ [57] to [58]. The Residential Contract Grounds (grounds 1, 4, 8 and 11) are addressed to this topic. 61 The primary judge accepted the respondent had entered into the Residential Contract noting that the executed copy of the contract was in evidence. His Honour noted the following features of the Residential Contract (at PJ [59] to [60]): 59 … It relates to the sale of 28 Corn Street (that is, the Corn Street Property) for $250,000; and it appears that Mr Hoy signed the contract on 19 July 2016, and Mr Hurst-Meyers on 20 July 2016. Item 7 of the Schedule to the Residential Contract provides that the "deposit payable" is $200,000. The Schedule provides for the parties to select one of five possible dates or events by which the deposit is to be paid; but none of the dates or events has been selected. 60 Item 19 of the Schedule is important. It deals with "Special Conditions". The box before the printed words "Other - refer Annexure" is ticked, and after the printed words there appear in handwriting "A Part 1 & Part 2". Annexure A to the Residential Contract is as follows: PART I This contract is subject to the Plan of Division for the within described land being accepted for deposit by the Registrar General of Land Titles Office on or before 26th day of September 2016 The Vendor shall promptly apply for all necessary consents and approvals and shall cause to be prepared the Plan of Division and any further documents necessary for or incidental to the preparation, deposit and registration of the said Plan of Division and shall use its best endeavours to procure such consents and approvals. The Vendor shall pay all survey, division, service connections and Land Titles Office costs. Settlement shall take place within twenty eight (28) days of the Plan of Division being deposited by the Registrar General of Land Titles Office PART 2 This agreement is conditional upon the settlement of another contract pertaining to the land dated the 23rd day of March 2016, between the vendor . . . , and the Purchaser Ralph George Hurst-Meyers as Trustee for the Hurst-Meyers family Trust and or Nominees, such contract must settle prior to the settlement of the within contract. 62 The primary judge then turned to consider the second part of issue (b), namely, whether the Residential Contract gave rise to any substantial reason for questioning the judgment debt. The primary judge concluded that it did not: PJ [62]. The primary judge's reasons for so concluding were as follows (at PJ [61]): The Residential Contract was made conditional on the "Plan of Division for the within described land" being accepted for deposit by the Registrar General of Land Titles Office on or before 26 September 2016, and there is no evidence, and Mr Hurst-Meyers has not suggested, that any such "Plan of Division" had been accepted by 26 September 2016 or at all. That is a basis for finding that the Residential Contract did not ever become binding. This finding is supported by Mr Hurst-Meyers having sent text messages to Mr Hoy in 2017, and an email in 2019, in which Mr Hurst-Meyers represented to Mr Hoy that he was arranging to return to Mr Hoy the $200,000 he contributed to the partnership, without Mr Hurst-Meyers' referring to the Residential Contract or otherwise asserting that Mr Hoy was not entitled to the return of the $200,000 because of the Residential Contract, or for any other reason. 63 The primary judge then turned his attention to issue (c), namely whether the appellant was able to pay his debts. The Net Asset Position Grounds (grounds 2 and 3) are loosely directed to this topic. 64 At PJ [63] to [67], the primary judge set out the applicable principles and the statutory framework. The appellant does not challenge the primary judge's recitation of the applicable principles. 65 The primary judge then turned to consider whether the appellant had shown that he was able to pay his debts: PJ [68] to [69]. His Honour concluded that the appellant had not established that he was able to pay his debts: PJ [69]. Critically, his Honour found that (at PJ [68]): Mr Hurst-Meyers' attempt to prove he is able to pay his debts goes no further than identifying properties he says he owns, assigning asserted values to the properties, and identifying the debts he says are secured by mortgages over the properties. The evidence is insufficient to prove Mr Hurst-Meyers is the beneficial owner of all of the properties; or that the properties have the values Mr Hurst-Meyers assigns to them, or that the debts secured on the properties are those Mr Hurst-Meyers says are so secured. More significantly, however, Mr Hurst-Meyers does not purport to identify all of his current assets and current liabilities; or his recurring or other liabilities that are certain to accrue in the future; or any other liabilities Mr Hurst-Meyers may incur in the future; or the income Mr Hurst-Meyers earns or expects to earn; or assets available to Mr Hurst-Meyers which may readily be converted to cash with which he will be able to pay his current liabilities, and his future liabilities as and when they accrue. 66 The primary judge dealt with miscellaneous issues raised by the appellant, which are not presently relevant (at PJ [70]). 67 At PJ [71], the primary judge concluded: I am not satisfied Mr Hurst-Meyers is able to pay his debts; and I am not satisfied there is some other sufficient cause a sequestration order ought not to be made. I therefore propose to dismiss the application for review; order that Mr Hurst-Meyers pay Mr Hoy's costs; and order that Mr Hoy's costs be paid out of the estate of Mr Hurst-Meyers on the basis that they have the same priority as the costs of the petition. 68 In the final paragraph of his reasons, under the heading "postscript", the primary judge recounted that (at PJ [72]): At 4:48 am on 1 March 2024, being the day on which I had listed the matter for judgment, [Mr Hurst-Meyers] sent an email to my Associate attaching an affidavit Mr Hoy made on 24 April 2020 in the proceeding he had commenced in the ACTSC; and Mr Hurst-Meyers made a number of submissions in his email. I have considered Mr Hurst-Meyers' email, and read Mr Hoy's affidavit. There is nothing in this material that causes me to wish to reconsider anything I say in these reasons.
CONSIDERATION 69 Before turning to the particular grounds of appeal, it is appropriate to identify at a general level the central difficulty with the appellant's approach to this appeal. The appellant has not identified in any coherent way any paragraph of the primary judge's reasons attended by error. That is a striking feature of both the FANOC and the appellant's oral submissions. When asked to identify by reference to the grounds articulated in the FANOC the errors he contended were made by the primary judge and where in the judgment the alleged error was made, the appellant could not do so. Indeed, my strong impression was that the appellant did not appreciate that it was critical to his prospects of success that he identify appellable error. Instead, the appellant approached the appeal as another hearing de novo, not only of the matters determined by the primary judge, but also of the matters determined in the Supreme Court proceedings, in respect of which he had consented to the dismissal of his appeal. I do not criticise the appellant, who appeared as a litigant in person, for his inability to grapple with the nature of the appeal and what is required in terms of demonstrating error. However, it is inescapable that an appeal by way of a rehearing is an appeal for the correction of error framed by reference to the ground or grounds on which the appellant claims that a judgment is erroneous and the existence of error is an indispensable condition of a successful appeal: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 553 [21], 556 [30], 556 [32] (Gageler J). The necessary consequence of the appellant's failure to identify and establish appellable error is that the appeal must be dismissed. 70 I have concluded that the appeal to the extent that it is competent must be dismissed. Those parts of the appeal which I have found not to be competent will be dismissed pursuant to r 36.72(5) of the Rules. As the reasons that follow make plain, had I not concluded that some of the grounds of appeal were not competent, I would have been compelled to dismiss those grounds in any event because the appellant failed to demonstrate appellable error on the part of the primary judge in relation to the subject matter traversed by those grounds. 71 The parties approached the appeal by addressing the competency issues concurrently with the substantive topics covered by the appeal grounds. I will address my reasons accordingly.
The Residential Contract Grounds - grounds 1, 4, 8 and 11 72 The relevant grounds are extracted at paragraph [38] above, I will not repeat them. 73 At the hearing, when pressed to identify where in the reasons for judgment the primary judge had erred, the appellant seized on PJ [72] as the critical paragraph (extracted at [68]). He focussed on this paragraph as constituting the error that informed the Residential Contract Grounds, which was the main thrust of his appeal. 74 His submission in effect was that the primary judge had erred by not taking into account the evidence that the appellant submitted on the day the matter was listed for judgment. I make three observations in relation to that submission. 75 First, the primary judge was under no obligation to take into account evidence and additional submissions that were supplied without leave and without an application to re-open after the matter was reserved. 76 Secondly, notwithstanding that the primary judge was under no obligation to do so, it is clear that his Honour did read and consider the appellant's additional submissions and the additional affidavit that was supplied by the appellant. His Honour expressly says that he did so, and having done so, he did not see cause to reconsider anything that he had expressed in his reasons. 77 Thirdly, the substance of the appellant's submission is that, despite the respondent acknowledging that the parties had signed a contract for the purchase of land, the primary judge ignored that the contract was validly signed and entered into by the respondent: see grounds 1, 4 and 8. The appellant's complaint is based on a false premise and a mischaracterisation of the primary judge's reasons. The primary judge expressly found that the Residential Contract was executed by the parties: PJ [59]. His Honour did not ignore the Residential Contract. As part of his consideration of whether there were substantial reasons for questioning the judgment giving rise to the judgment debt, his Honour had regard to the terms of the Residential Contract and concluded that on its proper construction the contract was made conditional on an event that did not occur within the time stipulated or at all: PJ [61]. 78 Grounds 1 and 8 are not particularised but in so far as these grounds contend that the primary judge "ignored" the evidence and the submissions made in relation to the Residential Contract, they are competent. Moreover, Grounds 1 and 8 are entirely lacking in merit. The errors said to be occasioned by the primary judge ignoring the relevant material are not established. These grounds must be dismissed. 79 In substance, ground 11 largely overlaps with grounds 1 and 8. It differs only in asserting that the respondent "breached the terms and conditions of the Contract of Sale", which it is contended was ignored by the primary judge. I would not dismiss this ground on the basis that it is not competent. However, it must be dismissed on its merits. The appellant has not by this ground established appellable error. By this ground, as elaborated in oral submissions, the appellant contends that the respondent had breached the Residential Contract, prior to any purported breach by the appellant, by failing to make a payment within the time required. By ground 9 of his notice of objection to competency, the respondent contends, amongst other things, that the appellant did not lead any evidence and did not offer any submissions before the primary judge to support his contention that the respondent breached the Residential Contract. The transcript of the hearing is not before me. There is no suggestion in the reasons for judgment that an argument to this effect was made. The appellant has not established the error for which he contends. In any event, whether the respondent breached the Residential Contract would appear to be entirely moot in circumstances where properly construed the contract was conditional on a condition that was not fulfilled within the stipulated timeframe, or at all. 80 Ground 4 is not intelligible. It is not competent. The error of fact alleged is not identified. This ground is dismissed on the basis that it is not competent. In any event, even if reframed in a way that was competent, the ground would be doomed to fail because in going behind the judgment of the Supreme Court, the primary judge clearly appreciated that the appellant argued in his unsuccessful counterclaim that the $200,000 payment was a deposit under the Residential Contract which the appellant contended had been forfeited and not a payment under the Partnership Agreement.
The Net Asset Position Grounds - grounds 2 and 3 81 These grounds are extracted at paragraph [38] above, I will not repeat them. The essence of the grounds is a complaint that the primary judge did not make findings of fact in relation to: (1) the value of the appellant's assets; and (2) that the value of the appellant's assets exceeded the "judgement & costs amount". 82 The difficulty with these grounds is that they are predicated on the primary judge erring by reason of failing to make findings which the primary judge was not required to make. Again, the appellant makes a bald assertion as to the identified factual findings not having been made but does not attempt to demonstrate how that of itself amounts to appellable error. 83 The primary judge was satisfied that the respondent had established the matters specified by s 52(1) of the Bankruptcy Act and accordingly the Court's power to make a sequestration order was engaged. Because the appellant sought to resist the making of a sequestration order on the basis that he was able to pay his debts the primary judge was required to, and did, determine whether pursuant to s 52(2)(a) of the Bankruptcy Act, his Honour was satisfied by the appellant that he was able to pay his debts. This was issue (c) as identified by his Honour in the list of issues to be determined, extracted at paragraph [58] above. As noted at paragraph [64] above, no challenge is made to the primary judge's identification of the applicable principles. 84 The primary judge's reasons for concluding that the appellant had not demonstrated to the primary judge's satisfaction that he was able to pay his debts is extracted at paragraph [65] above. Having regard to the quality and scope of the evidence adduced by the appellant, the primary judge concluded that the Court could not be satisfied on the critical issue. In order to reach that conclusion, it was not necessary for the primary judge to make positive findings of fact to the effect identified in grounds 2 and 3. 85 In any event, having regard to the paucity of the evidence relied upon by the appellant, and applying by analogy the principles established in relation to proof of corporate solvency, the primary judge was correct to proceed on the basis that the appellant had not discharged his onus of establishing solvency in circumstances where he had not presented the "fullest and best" evidence of his financial position: Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 at [44] (Weinberg J). The observations made by Weinberg J in Ace Contractors at [44] and extracted by the primary judge at PJ [67] are particularly apt in the present context - "[u]naudited accounts and unverified claims of ownership or valuation are not ordinarily probative of solvency. Nor are bald assertions of solvency arising from a general review of the accounts, even if made by qualified accountants who have detailed knowledge of how those accounts were prepared". For the reasons given by the primary judge at PJ [65] and [66], even if cogent evidence had been relied upon by the appellant, evidence establishing a surplus of assets over liabilities is not of itself sufficient to prove solvency. 86 Grounds 2 and 3 are not competent and are dismissed on that basis. For the reasons I have identified, had these grounds been framed in a way that was competent, they would have been dismissed on their merits. 87 For completeness, I note that the appellant submitted orally that he believed he had tendered an expert report going to solvency before the primary judge. The respondent maintained that the solvency report was not before the primary judge but had been tendered in other proceedings in this Court relating to a winding up application. There is no reference to such a report in the reasons of the primary judge. The description of the appellant's evidence at PJ [68] confirms that the appellant's attempt to prove that he was able to pay his debts went no further than identifying properties he says he owns, assigning asserted values to the properties, and identifying the debts he says are secured by mortgages over the properties. The appellant did not seek to tender the transcript of the hearing before the primary judge and as noted above has not sought leave to adduce further evidence. In these circumstances where I am not satisfied that the solvency report was before the primary judge, I reject the appellant's submission that the solvency report can be relied upon to demonstrate error on the part of the primary judge.
The Alleged Misconduct Grounds - grounds 5 and 6 88 Grounds 5 and 6 are extracted in full at paragraph [38] above. The nub of the complaint is that the primary judge "left out" Mr Evelyn's actions in allegedly failing to "act properly" (ground 5) and that the primary judge did not apply sanctions in relation to Mr Evelyn's actions in "sabotaging the sale of [the appellant's] assets" (ground 6). 89 Ground 5 is not competent. The appellant has not identified which of Mr Evelyn's actions the primary judge allegedly "left out". Further, it is not clear whether the appellant's complaint about the unspecified actions of Mr Evelyn is that they were not mentioned in the reasons for judgment or that they were overlooked and not considered. Without more, neither of these occurrences will necessarily constitute appellable error. As to the first, it is not necessarily an appellable error to omit to refer to a part of the evidence in the reasons for judgment even though it is an incident of judicial duty for the judge to consider all the evidence in the case and to refer to the relevant evidence: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 442-444 (Meagher JA). As to the second, a failure to refer to evidence will not necessarily give rise to an inference that a primary judge failed to consider the evidence in circumstances where the more compelling inference is that the primary judge regarded the evidence as immaterial: Beale at 444 . Ground 5 as framed does not expose any appellable error. The ground is not competent and will be dismissed. 90 Ground 6 is also not competent. There was not any application for "sanctions" raised before the primary judge and there was no cause for the primary judge to "address" any sanctions in respect of Mr Evelyn's unspecified conduct. The ground is not competent and will be dismissed. 91 In any event, in relation to both grounds 5 and 6, it is clear that the primary judge did address the appellant's contentions in relation to Mr Evelyn's conduct, which the primary judge recorded at PJ [48] to [51], and in determining issue (a) which was framed as whether the respondent, through Mr Evelyn, had frustrated the appellant's ability to realise properties in which he had equity to obtain funds with which to pay the judgment debt: PJ [53] to [55].
The Evidence Grounds - grounds 7, 9 and 10 92 Grounds 7, 9 and 10 are extracted in full at paragraph [38]. On their face, these grounds are each a species of complaint about the way in which the primary judge dealt with the evidence. 93 Ground 7 is on its face incompetent. The appellant's subjective belief about whether his medical certificate was "properly acknowledged" is not a pleading of error upon which a ground of appeal could be founded. In any event there is an additional difficulty with this ground because the appellant did not tender any medical certificate at the hearing before the primary judge and the appellant makes no attempt to demonstrate that the medical certificate to which he refers was relevant to any issue to be determined by the primary judge. Ground 7 is dismissed on the basis that it is not competent. 94 Grounds 9 and 10 are sweepingly broad. These grounds lack the precision required by r 36.01(2)(c) of the Rules. The appellant has not identified the evidence that he contends the primary judge either "ignored" (ground 9) or "dismissed" (ground 10). For the reasons given in relation to ground 5, evidence that is "ignored" does not necessarily amount to an appellable error. It is not clear what is meant by evidence being "dismissed" but it is not appellable error for a primary judge to not accept or afford little or no weight to evidence adduced in a proceeding. The primary judge's reasons make it clear that his Honour had regard to the evidence insofar as it was relevant to the appellant's position and admissible. Grounds 9 and 10 are dismissed on the basis that they are not competent. 95 Given the conclusion I have reached on the grounds of appeal, it follows that the appeal will be dismissed. I see no reason why costs should not follow the event. I will make orders accordingly.
Dismissal for want of prosecution 96 Given my findings above, it is not necessary to determine the respondent's application for the appeal to be dismissed under r 36.74 of the Rules. I am satisfied however that having regard to the procedural history of this appeal and the appellant's breach of Court orders that the respondent's acted reasonably in filing the application. The respondent's action in seeking to have the appeal dismissed under r 36.74 of the Rules was a proportionate response to the appellant's demonstrated inability or unwillingness to cooperate with the Court and the respondent in readying his appeal for hearing within an acceptable period and in an efficient way. In the circumstances, and noting that very little time was taken at the hearing in relation to this application, the respondent's costs of this application will form part of the costs of the proceeding, and be paid by the appellant.
CONCLUSION 97 I will make orders in accordance with these reasons. I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.
Hurst-Meyers
Hoy
[2001] FCAFC 1833
[2022] ACTSC 58
[2016] HCA 22
(1997) 48 NSWLR 430