Tov-Lev v Lowbeer

REASONS FOR JUDGMENT 1 As duty judge I am dealing with paragraph 1 only of the interlocutory application filed in this Court on 30 May 2014. 2 The background to that application is the judgment of Rares J given on 11 March 2014, Tov-Lev v Lowbeer (No 2) [2014] FCA 379, and an application for special leave to appeal from part of that judgment, being the part referable to NSD84/2014. That application for special leave to appeal was filed in the High Court of Australia on 7 April 2014, being proceedings S79/2014. 3 Paragraph 1 seeks an order that all proceedings under the sequestration orders against each of the applicants be stayed pending the determination of the application for special leave to appeal that I have referred to. The relevant orders made by Rares J in matter NSD84/2014 were that the appeal from the judgment of the Federal Circuit Court ordering the sequestration of the estates of the applicants be dismissed with costs and a stay of the sequestration orders be vacated. 4 Justice Rares was exercising the appellate jurisdiction of the Court in hearing the appeal from the Federal Circuit Court under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). 5 I should say at the outset that an appeal, let alone an interlocutory application of the present sort, does not involve a simple retrial of the issues at first instance. 6 A stay will only be granted in an appropriate case. The case does not have to be exceptional, but the Court must consider two matters: whether an arguable ground has been raised in the appeal and whether the balance of convenience favours the granting of a stay. That is the general position. 7 Where the question arises in litigation which has reached the point of an application for special leave to appeal, the approach of the Court is to examine whether the prospects of special leave being granted are or are not remote. For that purpose, I have considered the application for special leave to appeal filed on 7 April 2014 and I observe that it raises no question of legal principle so that, if special leave were to be granted, it would not be on a matter identified in s 35A(a) of the Judiciary Act 1903 (Cth) and for that reason would be less likely to be granted. I accept, of course, that the High Court may, in considering whether to grant an application for special leave, have regard to any matters that it considers relevant. 8 I proceed, however, on the basis that, on what has been put before me, the prospects of special leave being granted are remote. 9 I turn then to consider the applicants' written and oral submissions in support of the application for a stay. They amount to a rehearsal of the matters dealt with by Rares J as if the application I am considering, or indeed the special leave application, were a retrial of those matters. The submissions do not grapple with the reasoning in the judgment of Rares J which is the subject of the special leave application. 10 The major issues, leaving aside unsubstantiated and passing references in the submissions to such matters as judicial officers being biased, were as follows. 11 The first issue went to whether or not the applicants on the interlocutory application paid an amount of approximately $48,000 to the respondent within the time limit for compliance with the bankruptcy notices. Justice Rares, at [24] and [84], found that the applicants did not do so, and I do not find an arguable case of error in that respect. It is not shown that the proposition for which the applicants now contend, that is the proposition of fact, was put to Driver J, from whom the appeal to Rares J was brought, or that Rares J erred in finding as he did. 12 The second issue was the question of the premature enforcement of the sequestration orders by Mr Austin. In my opinion, this proposition goes nowhere on the present application. It was not explained to me where Rares J was arguably in error in this respect. 13 Next, it was put that the judgments in the Supreme Court of New South Wales had been obtained by fraudulent misrepresentations, and there were references made as well to faked company records as to meetings from 1998 onwards. 14 Justice Rares dealt with the matter of fraud on the Supreme Court in the context of the Bankruptcy Act 1966 (Cth) at [67]-[79]. The matters put to me, as I understood them, rested in bare assertion, and I am not persuaded that there was arguable error in this respect. I include in this what was said about false copies of pleadings in the Supreme Court, dealt with by Rares J at [26]-[29]. 15 Next there were a number of submissions based on a payment of $7,500 said to have been made by Mr Neumann to the respondent which is referable, as I understood it, to what is said to be due and payable. That matter is dealt with in [17]-[18] of Rares J's judgment, and nothing that was put to me explained in any detail or persuaded me that there was any arguable error in that respect. 16 A submission was put with reference to cll 20 and 37 of the memorandum of association of the company and the associated indemnity question. These matters were dealt with by Rares J at [64]-[66] and [81]-[83] and no arguable error appears. 17 Also there were complaints in the written submission, but of no separate substance, about the conduct of Rares J. Those submissions were not developed and I find there was no arguable error in that respect. 18 I therefore find on this application that an arguable ground of appeal has not been made out. 19 I touch briefly on the balance of convenience because Mr de Varda, in particular, made submissions on that topic. 20 In my opinion, there is no evidence of any specificity as to the balance of convenience so far as concerns the position of Mr de Varda. There is no evidence of any detail as to that matter or to the balance of convenience generally and I am not satisfied that that prejudice as articulated outweighs the public interest in the trustee taking such steps as may be necessary between now and the date of the determination of the application for special leave to appeal. 21 For these reasons, I refuse the relief sought in paragraph 1 of the interlocutory application filed on 30 May 2014. 22 I asked Mr Skinner, counsel for the trustee, if the regime at this point made some provision for the ordinary living or daily expenses of the applicants for special leave. I understand from Mr Skinner's answer that, on application, arrangements can be made with the trustee in this respect. 23 I note finally that the question of the issue of subpoenas for the purposes of this interlocutory hearing was not pursued before me by the applicants. 24 As to the balance of the interlocutory application, the appropriate order is that it stand over to be dealt with by the Court at a time to be notified to the parties. The applicants, if they so wish, should approach the Registry for that purpose. 25 The applicants must pay the respondent's costs of paragraph 1 of the interlocutory application. I make no order in relation to the costs of the trustee. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.