May v AAI Insurance formerly known as Vero Insurance

REASONS FOR JUDGMENT (Revised from Transcript) 1 This is an appeal from a judgment of the Court in respect of the review of a sequestration order made by a registrar. The grounds of appeal are these: 1 Denial of procedural fairness 2 Irrelevant considerations, taken into account. 3 Error in the facts [sic] 2 The orders sought in the notice of appeal are: 1 The entire judgment of Justice Griffith be set aside along with the Bankruptcy notice. 2 This appeal is limited, only to the Judgment of Justice Griffith judgment of the 14th of March 2014 and limited to File Number 2301 of 2013 being the refusal to set aside the sequestration order against the estate of Stephen May [sic] 3 The rules of this Court make particular provision, by r 36.01(2), for the content of a notice of appeal. The grounds in this particular notice of appeal are stated at such a level of generality as to raise a question as to whether there is truly, because of an absence of meaningful grounds of appeal, an invocation of appellate jurisdiction occasioned by a failure to file a notice of appeal of a kind required by the Federal Court Rules 2011 (Cth). 4 The grounds were not developed in oral submissions in any way which gave particularity. The occasion for requiring particularity in grounds is itself one of procedural fairness so that a respondent knows the case it must meet upon an appeal. 5 Even if one were to take the view that there is meaningful content in the grounds, there is no substance in them, quite apart from the fact that there was no development of argument by reference to them. 6 It is apparent from the proceedings before the primary judge, Griffiths J, that his Honour extended fully an opportunity to be heard to Mr May in respect of the merits. 7 It is further apparent from the detailed reasons given by the primary judge that his Honour engaged fully, indeed heroically, with the merits or otherwise of whether, in the exercise of the review power, the sequestration order ought to be set aside. 8 It is a feature of the case that the bankruptcy notice concerned was grounded upon two orders for costs. The occasion for the making of those orders for costs was not the subject of challenge. The orders themselves remained in place at the time of the proceedings before the primary judge. Neither, it must be said, was there any challenge to the taxation of the amounts of costs pursuant to the orders. 9 Further, there was nothing before his Honour which would, exceptionally, have provided an occasion for a court of bankruptcy to go behind the costs orders concerned. Those costs orders were occasioned by particular procedural outcomes adverse to Mr May and that in proceedings which he chose to institute in this Court. 10 That particular choice seems to have been occasioned by a dissatisfaction on his part with the course of proceedings in the District Court of New South Wales. That is, as may be. What remains, are costs orders which grounded a bankruptcy notice which was not complied with. 11 It must also be said that there was no evidence before the primary judge of solvency, such as might, perhaps, have occasioned the exercise of a discretion not to sequestrate; nor is there any such evidence before us. 12 As to the grounds which allege irrelevant considerations and error in the facts, these were not developed at all in oral submissions. It is not possible to see, on the face of his Honour's reasons for judgment, any irrelevant consideration taken into account, much less any error of fact. 13 Having regard to the orders sought, it must also be stated that they overreach themselves in terms of an endeavour, apparently, to challenge the bankruptcy notice itself. There was no such proceeding instituted within the time allowed or, at least, no disposition of any such proceeding. All there was was a failure to comply with a bankruptcy notice. 14 Having regard to all of the foregoing, there is no merit in this appeal. It must therefore be dismissed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Logan, Pagone and Perry.