Teese v Clinch Neville Long

[2003] FCA 274

Federal Court of Australia|2003-03-28|Before: Kirby J, Lindgren J

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Source facts

Court

Federal Court of Australia

Decision date

2003-03-28

Before

Kirby J, Lindgren J

Source

Original judgment source is linked above.

Judgment (53 paragraphs)

[1]

INTRODUCTION 1 The applicant ("Ms Teese") applies for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court ("FMC"). The judgment was pronounced on 20 August 2002, in exercise of the bankruptcy jurisdiction which is vested in the FMC and this Court concurrently by subs 27(1) of the Bankruptcy Act 1966 (Cth) ("the Act"). This Court is given the relevant appellate jurisdiction by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ("the FCA Act"). 2 Subrule 15(1) of O 52 of the Federal Court Rules had the effect, relevantly, that the notice of appeal was required to be filed and served within twenty-one days after the date when the judgment appealed from was pronounced. That period expired on 10 September 2002, but subrule 15(2) empowers the Court or a Judge for "special reasons" at any time to give a person leave to file and serve a notice of appeal. 3 Subsection 25(2) of the FCA Act provides, relevantly, that applications for an extension of time within which to institute an appeal to the Court may be heard and determined by a single Judge or by a Full Court. Even where, as at present, the jurisdiction is being exercised by a single Judge, it is the Court's appellate jurisdiction which is being exercised: Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424; Wati v Minister for Immigration & Multicultural Affairs (1997) 78 FCR 543. 4 In order to establish "special reasons", Ms Teese must demonstrate circumstances which take the case out of the ordinary run of cases, since the latter are clearly intended to be governed by the general time limit of twenty-one days: Jess v Scott (1986) 12 FCR 187 at 195; Hannpost Pty Ltd v Mita Copiers Australia Pty Ltd (1996) 67 FCR 416 at 427-428; and see Jackamarra v Krakouer (1998) 195 CLR 516 at 539-543 per Kirby J.

[2]

BACKGROUND FACTS 5 The orders of the FMC made on 20 August 2002 against which Ms Teese wishes to appeal were made by Driver FM and were as follows; "1. A sequestration order be made against the estate of Ann-Carolyn Teese. 2. The Applicant Creditor's costs (including reserved costs, if any) be paid from the estate of the Respondent Debtor in accordance with the Bankruptcy Act 1966. 3. A copy of these orders is to be provided to the Official Trustee within 2 days of entry of these orders. 4. Pursuant to Section 52(3) of the Bankruptcy Act 1966, all proceedings under the sequestration order be stayed for 21 days after today's date." The court notes that the date of the act of Bankruptcy is 5 June 2001." 6 Ms Teese filed her application for an extension of time, which commenced this proceeding, on 9 December 2002. The respondents are a firm of solicitors who formerly acted for Ms Teese. They were substituted as petitioning creditors in the bankruptcy proceeding in the FMC. I will refer to them as "Clinch Neville Long". 7 Ms Teese, who appears unrepresented, has filed a draft notice of appeal setting out the following grounds of appeal which she would wish to raise: "1. His Honour erred in refusing applications for adjournment. 2. His Honour erred in not going behind the judgment in [sic - on] which the substituted petitioning creditor relied. 3. His Honour erred in accepting the bald statement of the substituted petitioning creditor that there was no written Costs agreement. 4. His Honour erred in making a Sequestration Order and granting a Stay of 21 days, as the making of a Sequestration Order, defeated the purpose and object of a 21 day stay." 8 In order to deal with grounds 1 and 2, it is necessary that I refer to the unfortunately complex historical background to the position in which Ms Teese now finds herself. As well, it is necessary that I refer to that background in addressing the reason for the lateness in Ms Teese's attempt to file a notice of appeal. I will summarise the background in the following numbered paragraphs:

[48]

Defeat of the twenty-one day stay by the making of the sequestration order 16 There is no substance in the fourth ground of appeal either. That ground was put in various ways by Ms Teese. Her chief submission was that Clinch Neville Long wrongly, and inconsistently with the twenty-one day stay, caused particulars of the sequestration order to be recorded in the NPII. 17 Subsection 52(1A) of the Act provides as follows: "If the Court makes a sequestration order, the creditor who obtained the order must give a copy of it to the Official Receiver for the District in which the order was made." The FMC had no power to relieve Clinch Neville Long of the obligation to comply with that statutory provision, but even if the FMC had had power to do so, it did not purport to do so by its orders of 20 August 2002. By ordering that a copy of his orders be provided to the "Official Trustee" within two days of entry of the orders, Driver FM made it clear that the stay of all proceedings "under" the sequestration order for twenty-one days did not include a stay on the discharge of the obligation imposed on the solicitors to provide a copy of the orders to the Official Receiver. 18 It is clear beyond argument that when Clinch Neville Long provided a copy of the orders to ITSA, they both performed the statutory obligation incumbent upon them and obeyed Driver FM's orders. 19 The terms of the proposed fourth ground of appeal suggest inconsistency between the twenty-one day stay and the making of a sequestration order. They are not inconsistent. The expression "under the sequestration order" in subs 52(3) of the Act and in Driver FM's fourth and final order does not refer to the obligation to notify imposed by subs 52(1A) of the Act and ordered by Driver FM. There remained ample work for the stay to do since there are many other steps required to be taken under the sequestration order. 20 In the evidence, there is reference to Ms Teese's assets. She claims that she has the means with which to pay her debts. A particular claim which she has made is that she obtained shortly after 20 August 2002 approval of a loan of $385,000 and that it was the entry of particulars of the sequestration order in the NPII which, coming to the notice of the intending lender, caused that lender to withdraw its offer. There is in evidence a strange document purporting to come from "Sergio Perkowitz (LLB, MBA), Director Serper Pty Ltd". The letter is unsigned. It purports to have been sent to Ms Teese on 22 September 2002 at 12.33.26 pm. It is addressed "To whom it may concern" and states (solecisms preserved): "Please note that Ann Carolyne Teese applied for the loan $385,000 on the end of August. She paid the application fee of $785 and the loan was preliminary approved, subject to valuation and credit cheque. She also paid the valuation fee and the satisfactory valuation was done on her property. Suddenly, the listed bankrupcy was found to be on her credit rating - listed on 20.08.2002. The lender indicates that their loan will still be in place in the case that bacrupcy is removed from Credit Bureaux." There are no facsimile machine imprints on the letter. 21 Ms Teese submits that Clinch Neville Long prevented her obtaining finance by having caused particulars of the sequestration order to be registered prior to expiry of the twenty-one day stay. I have already held that they were entitled to do precisely what they did within two days following the making of a sequestration order. But even if the twenty-one day stay had meant that they were not entitled to do it until after the expiry of that period, Ms Teese's submission would still lack any merit. It would be a submission that she was entitled to deceive a financier in the hope of obtaining funds within the twenty-one day period before details of the sequestration order were recorded and known to the financier.