Owners Corporation Plan No. RP017582 v Apter [2026] FedCFamC2G 27

Note: The form of the order is subject to the entry in the Court's records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 24.04(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth)), or to record a variation to the order pursuant to r 24.04 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth).

1. By an Application for Review filed in this Court on 2 October 2025 and accepted for filing on 14 October 2025, the Applicant Creditor seeks review of a decision of a Registrar of this Court (Application for Review). On 11 September 2025 the Registrar dismissed the Administrator's Petition pursuant to section 244(12) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
2. The review hearing took place on 27 October 2025. At the conclusion of the hearing, I made orders extending the expiration of the Creditor's Petition in this matter, which would lapse on 25 February 2026, to 25 August 2026. In addition, I made orders for the filing of submissions on the question of the proper party to the proceeding by 3 November 2025 with any submissions in response to be filed no later than 10 November 2025. The parties complied with these orders.
3. On 26 November 2025 correspondence was received from the Applicant's solicitors informing the Court of a change in circumstances. First, that there had been a caveat lodged on 21 October 2025 over the real property described as Certificate of Title Volume 09454 Folio 139 and second, that the Interested Party made a payment on 18 November 2025 of $5,000.00 reducing the alleged debt upon which the creditors petition relies. In these circumstances, I ordered the Applicant file submissions regarding the two matters raised in the correspondence of 26 November 2025 by no later than 4.00pm on 5 December 2025, and the Respondent file submissions in response by no later than 4.00pm on 12 December 2025. The parties complied with my orders.
4. The submissions of both parties concur on the point that the payment by the Interested Party reduces the alleged debt to an amount below the statutory minimum.
5. The parties disagree on whether I should affirm the order of the Registrar or dismiss the Creditor's Petition. The former is the position of the Interested Person and the latter is the position of the Applicant.
6. It is apparent from the parties' respective submissions that the real controversy is now to the issue of costs and if an order is made which party should it be made in favour of.

DISMISSING THE CREDITOR'S PETITION VERSUS AFFIRMING THE ORDERS OF THE REGISTRAR

1. This matter comes before me as a review of a Registrar's decision. Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) provides:

A party to proceedings in which a delegate has exercised any of the powers of the Federal Circuit and Family Court of Australia (Division 2) under section 254 may:

(a) within the time prescribed by the Rules of Court; or

(b) within any further time allowed in accordance with the Rules of Court;

apply to the Court for review of that exercise of power.

1. A review application is not an appeal but rather a hearing de novo. This means that the Applicant does not have to "demonstrate any material error of fact, or principle, in the order under review" and the Court considers the matter afresh: Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]; Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61 at [43].
2. Accordingly, the petitioning administrator must prove, and the Court must be satisfied, that the requirements for the making an order under s 244 of the Bankruptcy Act exist: Meinhardt (Hong Kong) Ltd v William Lindsay Meinhardt (Deceased), William Edward Meinhardt & Ors (No.2) [2006] FCA 1323 at [48], [49] and [52].
3. The Application for Review does not operate as a stay of a Registrar's order: Ashwood & Ashwood [2024] FedCFamC2G 88 at [37] - [38] (Judge Manousaridis).
4. The order made by the Registrar remains extant: Robson as former Trustee of the Estate of Samasakopoulos v Body Corporate for Sanderling at Kings Beach CTS 2942 [2021] FCAFC 143 at [22] (Allsop CJ) (Robson). The Registrar in this matter dismissed the Administrator's Petition.
5. The parties are ad idem on the fact that the Court has the power to dismiss the creditor's petition where a payment is made after the hearing, but before the judgment is pronounced, and the consequence of the payment results in the remaining debt being less than the statutory minimum.
6. I make the following observations with respect to the submission on dismissal of the creditor's petition. First, I agree that a strict reading of s 244(11) of the Bankruptcy Act would result in an interpretation of the provision that is manifestly absurd or unreasonable: Owners Strata Plan No. 4393 v Roberts, in the matter of Roberts [2024] FedCFamC2G 1074 at [19]. I agree with Counsel for the Applicant's submission, referring to Justice Emmet's statement in Saville and Romer [2002] FCA 351 at [16], that it would be an odd outcome if the position, that is once the debt had been paid, that it would be possible for the petitioner to prove the debt was still owing. As such the only course of action open to the Court would be to dismiss the petition.
7. Second, consistent with the overarching purpose of civil practice and procedure provisions in s 190 and s 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and r 1.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 (Cth) (GFL Rules), I consider that it was unnecessary for a formal reopening of the hearing. The correspondence of 26 November 2025 informing the Court of the payment reducing the quantum of the debt and my subsequent orders requiring the parties to file submissions is sufficient, as far as necessary to reopen or otherwise continue the hearing. This is consistent with the facilitation of the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible.
8. Both parties agree that the debt is below the statutory minimum and the Creditor's Petition should in some manner or form be dismissed.
9. As submitted by the Interested Party referring to Justice Colvin in Robson at [62] that even where a Court concluded a review should be dismissed, it is usual for the Court to affirm the orders made by the Registrar as the Court's delegate, this is because the act of the delegate is replaced by an exercise of judicial power by a judge.
10. As the application before me is an Application to Review a Registrars Decision, where the Registrar has dismissed the Administrator's Petition, it is the appropriate course to affirm orders of the Registrar of 11 September 2025.
11. In so far as necessary I will also vacate my order of 27 October 2025 extending the expiration of the creditors petition as in the circumstances this order has no utility.

1. The Applicant and the Interested Party seek orders against the other for costs. The Applicant proposes that the Interested Party pay the Applicant's costs of and incidental to the proceeding as agreed or taxed. In the event that the Court does not make the order then there should be no order as to costs.
2. The Applicant's submission is that although the petition should be dismissed it does not make the Interested Party the 'winning party' or that the Interested Party is entitled to costs following the event. The Applicant relied upon the general principle that where a debtor paid the debt which a petition is founded on and the petition is dismissed, then the debtor be ordered to pay the petitioner's costs: Deputy Commissioner of Taxation v Cameron [2001] FCA 1567 at [29] per Lindgren J and Saville at [11].
3. The Interested Party seeks that the indemnity costs ordered on 11 September 2025 by the Registrar not be disturbed. The indemnity costs were awarded due to a Calderbank offer by the Interested Party to the Applicant which expired at 5:00pm on 27 June 2025.
4. Both parties complain about the manner in which the other party has conducted their respective cases. The Applicant in their post hearing submissions, filed on 5 December 2025, stated that the advancing of submissions about solvency by the Interested Person were based on a false factual premise, namely that Mr Apter had already transferred the property from the estate into his own name. It is asserted that the consequential waste of time and expenses in the proceeding dealing with factually false premise is something the Court should have regard to when making an order as to costs.
5. In response, the Interested Party in the post hearing submissions filed on 12 December 2025 stated that the Applicant displayed a lack of candour by putting before the Court affidavits of debt with an out-of-date title search.
6. The Interested Party was clear in his written and oral evidence that he had applied for probate of the First Respondent's estate. In addition, he was in the process of having the real property transferred to his name and did not intend to apply for probate of the Second Respondent's estate.
7. As I observed at the hearing that it appeared to me the Applicant was using a sledge hammer to crack a nut. I concur with the submission of the Interested Party that the Victorian Civil and Administrative Review Tribunal (VCAT) would have been the appropriate forum for the controversy to be ventilated, rather than in this Court, and that it is still open for the Applicant to commence proceedings in VCAT.
8. I do not accept the submission of the Interested Party that because there was a part payment of the alleged debt rather than a payment in full that the general principle should not apply. I am cognisant of the fact that part payment was made a month after the conclusion of the hearing which reduced the alleged debt to approximately $2,000.00 below the statutory minimum. Further the letter from the Interested Party of 18 November 2025 tendering the payment allows me to infer that the purpose of the payment was to bring the alleged debt under the statutory minimum.
9. This is not a case where the Applicant seeks both the "bird in the hand and the bird in the bush" as submitted by the Interested Party. The alleged debt has only been partially discharged and none of the costs incurred by Applicant have been defrayed.
10. I have concluded that it is appropriate to make no order as to costs with respect to the review proceedings because of the manner in which both parties conducted these proceedings.
11. For the avoidance of doubt the cost order made on 11 September 2025 will remain extant with respect to the proceeding before the Registrar.

1. I ordered the parties file submission as to the proper parties to this proceeding.
2. Both the parties agree that Mr Apter in his capacity as legal personal representative of the Estate of Grigory Shtrambrandt (Dec'd) be substituted as the First Respondent. Mr Apter was granted probate on 17 July 2025. Pursuant to rules 9.09, 9.10, and 9.11 of the GFL Rules, orders will be made joining Mr Apter in substitution for the First Respondent.
3. With respect to the Second Respondent, the Interested Party in his affidavit of 27 August 2025 stated that he did not intend to apply for probate of her will. Therefore, it is inappropriate to make orders substituting Mr Apter as the Second Respondent's legal personal representative. There is no evidence of the terms of the Second Respondent's will or who was appointed the executor under that will. I decline to make orders substituting Mr Apter as personal representative of the Estate of the Second Respondent.

1. Mr Apter in his capacity as legal personal representative of the Estate of Grigory Shtrambrandt (Dec'd) be substituted as the First Respondent.
2. The Application for review of Registrar's Decision filed on 25 February 2025 must be dismissed and the decision of the Registrar be affirmed.
3. Order 1 of the Orders dated 27 October 2025 be vacated.
4. There be no order as to costs with respect to the Review proceedings.
5. Orders will be made reflecting this decision.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham.