Appellant Seeks Extension of Time to File Application
Saha & Lahiri (No 2) [2022] FedCFamC1A 181 (11 November 2022)
The appellant filed an appeal against orders refusing to grant the appellant an extension of time to file an application. The appellant failed to file a Summary of Argument within the time prescribed by the procedural orders. The Court, in resolving this dispute, assessed whether the appellant was denied procedural fairness.
Facts
The appellant was the owner of a property at Suburb C. On 15 October 2014, she transferred a 1/100th interest in that property to Mr Lahiri, her husband and the first respondent to this appeal (“the first respondent”). On 8 December 2014, the appellant and the first respondent transferred their interests in the Suburb C property to D Pty Ltd as trustee for the D Pty Ltd Superannuation Fund, the third respondent (“D Pty Ltd”). The beneficiaries of the fund are said to be the appellant and the first respondent. The transfer was expressed to be for nil consideration.
The appellant became a bankrupt on 30 September 2016, pursuant to a sequestration order made on that day. Mr Feltos, the second respondent, became her trustee in bankruptcy (“the Trustee”). The first respondent commenced these proceedings on 3 July 2020. On 4 June 2020, the Official Receiver, at the request of the Trustee, issued a notice under s 139ZQ of the Bankruptcy Act to D Pty Ltd. The notice referred to the above transactions and asserted that the transfer by the appellant of her property on 8 December 2014 was void against the Trustee pursuant to s 120 of the Bankruptcy Act. It demanded the payment of $853,875 to the Trustee, being the value of the appellant’s interest.
The first respondent filed an Amended Initiating Application on 24 August 2020 which sought, amongst other orders, that the notice be set aside pursuant to s 139ZS of the Bankruptcy Act. That matter came before the primary judge on 21 and 25 February 2022. By that time, the first respondent, D Pty Ltd and the Trustee had resolved their differences and jointly asked the Court to make orders: "Permitting the first respondent to discontinue the Amended Initiating Application insofar as it sought relief against the Trustee; Requiring D Pty Ltd to pay $853,875 to the Trustee; and that the above sum was to be paid from the proceeds of the sale of the Suburb C property." The primary judge made these orders.
The primary judge directed that the appellant’s Response to an Application in a Case sent on 18 March 2022 be treated as an application by her pursuant to s 139ZS(1) of the Bankruptcy Act to set aside the notice. His Honour found that the appellant needed an extension of time to bring the application within the time prescribed by s 139ZS and considered that the provisions of s 33(1)(c) of the Bankruptcy Act enabled him to do so. The primary judge held that the trustees of the superannuation fund that received the property provided valuable consideration for it by agreeing to accept the obligation to provide superannuation payments in due course.
The appellant filed an appeal against orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 27 April 2022, refusing to grant an extension of time to file an application.
Issue
Whether or not the application should be granted.
Applicable law
Bankruptcy Act 1966 (Cth) ss 120 - relied upon in holding that the notice referred to the above transactions and asserted that the transfer by the appellant of her property on 8 December 2014 was void against the Trustee.
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 - provides that a regularly commenced appeal should not lightly be dismissed due to a procedural default.
Analysis
The application for an extension of time is interlocutory in nature and, as recognised in the Notice of Appeal, leave to appeal is required. The appellant sought to rely on the “Appellant’s Outline of Argument” document. For it to stand as her Summary of Argument, she needs an extension of time. First, the Outline of Argument seeks to challenge the making of the consent orders agreed between the Trustee, the first respondent, and D Pty Ltd. It asserts that the appellant was denied procedural fairness as she only became aware of the proposed consent orders the day before the hearing.
Whilst the Outline of Argument asserts that the lawyer’s application for a short adjournment was refused, that is not what occurred. The Outline of Argument does not deign to say why the primary judge’s decision to refuse the adjournment, if that is what it was, was erroneous. These submissions entirely overlook the opportunity to file further evidence and written submissions given to the appellant by the directions of 25 February 2022. That delay in the proceedings also enabled the appellant to obtain legal advice.
Conclusion
The appellant’s oral application to adjourn the appeal hearing is dismissed. The appeal is dismissed.
