Maytom v Prentice

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This application for leave to appeal has come on urgently tonight from a decision of Judge Altobelli in the Federal Circuit Court given earlier this afternoon. His Honour refused the application of Gary Maytom to stay a writ of possession due to be executed tomorrow, 26 July 2013.

Background 2 The circumstances in which this application has arisen are that Mr Maytom was made bankrupt by an order of the Federal Magistrates Court on 6 March 2012. Mr Maytom has with him his litigation guardian, his daughter, Rachel Taylor. Both made extensive submissions to me this evening explaining his perception of injustice in the circumstances in which that sequestration order was made and the entitlements of the petitioning creditor to seek it. However, those matters were not the subject of the application before Judge Altobelli and are not before me. Mr Maytom had made an application made to Foster J to seek an extension of time to appeal against orders made by the Federal Magistrates Court on 2 August 2012 but those circumstances are not relevant here: Maytom v Warren McKeon Dickson Pty Ltd [2012] FCA 1300. 3 On 4 March 2013, Driver FM appointed Ms Taylor as Mr Maytom's litigation guardian. His Honour dismissed an application made on 22 February 2013, and then made a declaration that the property Mr Maytom occupies at 484 to 486 Hunter Street, Newcastle as his home was beneficially owned by Maxwell Prentice, his trustee in bankruptcy. His Honour ordered Mr Maytom to deliver up possession of the Hunter Street property within 21 days and made a further order that in the event that Mr Maytom failed to do so, a writ of possession issue forthwith in favour of Mr Prentice. 4 Mr Maytom sought, from Jacobson J on 17 April 2013, leave to appeal from those orders out of time. His Honour extended the time for filing and serving a notice of appeal by Mr Maytom from Driver FM's orders to 7 May 2013 and imposed a condition that the parties attend at a mediation on 1 May 2013: Maytom v Prentice [2013] FCA 387. In the course of his reasons, his Honour identified an arguable ground of appeal, namely, that the Federal Magistrate may have erred in the exercise of his discretion by failing to take into account matters that Mr Maytom was endeavouring to put to him on 4 March 2013 so that there was possibly a denial of procedural fairness. 5 In the event, Mr Maytom failed to comply with his Honour's order to file and serve a notice of appeal. Mr Maytom applied for a further extension of time that his Honour dealt with that at a hearing on 21 May 2013. Jacobson J rejected Mr Maytom's application for a further extension of time. His Honour said that notwithstanding the concerns that he had for Mr Maytom, expressed in his earlier reasons for judgment and the fact that he accepted, as do I, that Mr Maytom suffers from significant ill health, his Honour could not, in all the circumstances for the reasons that he gave, further extend the time for filing a notice of appeal: Maytom v Prentice (No 2) [2013] FCA 502. 6 Mr Prentice applied for a writ of possession to issue by the sheriff of New South Wales at some time before such writ of possession issued on 11 June 2013. On 20 June 2013, the sheriff's office issued a notice to vacate to the occupier of the Hunter Street premises. The notice to vacate stated that all occupants of the Hunter Street premises had to vacate them prior to 12 noon on 26 July 2013, failing which, action would be taken to evict them without further warning. That notice also stated that a writ of possession had been issued in the proceedings intituled with the Federal Magistrates Court number, but (wrongly) identified that the source of the order was the Supreme Court of New South Wales. Mr Maytom says that the notice to occupier was not received directly by him but came to him from a neighbour who said that the notice had been found in the street. However, he and Ms Taylor accept that Mr Maytom received the notice by no later than late June 2013. They were confused by the reference to the Supreme Court and they spent some time dealing with officers of the Supreme Court seeking to investigate how the writ came to be issued by that Court and what they could do about it. Eventually, about two weeks ago, they discovered, Ms Taylor told me, that the writ had in fact been issued pursuant to the authority of the orders made by Driver FM on 4 March 2013 to which I have referred. 7 Late yesterday Mr Maytom applied to me as duty judge with an interlocutory application and an affidavit he had sworn yesterday. The affidavit annexed the notice to occupier, a medical certificate identifying his significant health issues and a letter from Legal Aid New South Wales dated 22 July 2013. The letter stated that Mr Maytom had a civil law appointment with the legal aid office in Castlereagh Street, Sydney on 5 August 2013 and that he had told the writer that he was unable to attend the office any earlier due to his medical condition and doctor's recommendation. I listed that application for hearing at 2.15pm today, but in the event Mr Maytom brought an interlocutory application based on the same affidavit before Judge Altobelli in the Federal Circuit Court. His Honour dealt with the application earlier this afternoon. The judge ordered that it be dismissed and that the trustee's costs be costs in the administration. 8 Mr Maytom then filed an application for leave to appeal from his Honour's orders and sought an order extending the time before which the writ for possession could be executed. During the course of argument today I was told that his Honour had discussed with the parties the possibility of postponing the execution of the writ for about two weeks but, when giving his reasons, explained to the effect that he was unable to see that Mr Maytom would suffer a greater hardship than the creditors by the exercise of his discretion not to postpone execution of the writ. Accordingly, his Honour dismissed the application without granting Mr Maytom any further time.