Maytom v Warren McKeon Dickson Pty Ltd

REASONS FOR JUDGMENT 1 On 8 November 2012, the applicant filed an application in this Court for an order extending the time within which he might seek leave to appeal from certain orders made by a Federal Magistrate on 2 August 2012. Those orders, which were essentially procedural in nature, were in the following terms: UPON APPLICATION MADE TO THE COURT, MR JOHNSON appearing for the RESPONDENT, MR KELLY appearing for the SUPPORTING CREDITOR, MS NASH appearing for the TRUSTEE and the APPLICANT appearing IN PERSON by telephone THE COURT ORDERS THAT: 1. The Court notes that following the sequestration order made on 6 March 2012 in the absence of the respondent debtor, the respondent debtor filed an Application in a Case on 5 June 2012 pursuant to 16.05 of the Federal Magistrates Court Rules 2001 (Cth). 2. The Court notes that due to ill health, the debtor has been unable to date to prosecute the application to a hearing. 3. Having regard to the lapse of time, the Court will treat the Application in a Case filed on 5 June 2012 as an application for annulment under s.153B of the Bankruptcy Act 1966 (Cth). 4. The applicant on the annulment application (Mr Maytom) is to file and serve on the respondent creditor any amended application by 7 September 2012. 5. The applicant is to file and serve on the respondent creditor any affidavit evidence in support of the application by 7 September 2012. 6. The respondent creditor is to file and serve on the applicant any affidavit evidence by 14 September 2012. 7. The applicant is to file and serve on the respondent creditor any affidavit evidence in reply by 21 September 2012. 8. The applicant is to provide a completed statement of affairs to the Official Receiver within 14 days. 9. The trustee is to prepare a report pursuant to rule 7.04 of the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth). 10. The matter is listed for hearing at 11.00am on 8 November 2012. 11. Parties have liberty to apply for further orders or directions on five days notice. 12. Costs of today are reserved. 2 When the matter was called on for hearing this morning, there was no appearance either by or on behalf of the applicant. Nonetheless, I initially proceeded to deal with the matter in the absence of the applicant. 3 I have been informed from the Bar table by Ms Nash, who appeared this morning as a courtesy to the Court and who informed me that she was the lawyer retained on behalf of the trustee of the applicant's estate, that the applicant's application before the Federal Magistrates Court for an order annulling his bankruptcy was dismissed on 8 November 2012. 4 The procedural orders made on 2 August 2012 were designed to ready for hearing the applicant's application for annulment. By Order 10 made on that day, the Federal Magistrate fixed that application for hearing on 8 November 2012. 5 There would be no point in extending time for leave to appeal in the circumstances of the present case because the application for leave to appeal is hopeless. This Court would not grant leave to appeal from procedural orders of the kind made by the Federal Magistrate on 2 August 2012, except in a very rare case and then only for very good reason. This is not such a case. In any event, the orders are well and truly spent. 6 Accordingly, I dismiss the applicant's application. 7 I order the applicant to pay the respondents' costs of and incidental to his application. 8 After I had dealt with the matter and made orders dismissing the applicant's Application, the applicant came into Court. By then, I had begun hearing the next matter in the list. I interrupted that matter in order to permit the applicant to address the Court. The applicant wanted to traverse the entire history of the dealings which led to his bankruptcy and the course of events since his bankruptcy. It became apparent to me that the applicant wanted to challenge the making of the sequestration order which had been made against his estate in March 2012. I informed the applicant that the Originating Application which he had filed in this matter did not do that. After hearing further submissions from the applicant, I declined to reconsider the judgment which I had already delivered. The orders which I made earlier, therefore, remain in effect. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.