FEDERAL COURT OF AUSTRALIA Greer v Official Trustee in Bankruptcy [2002] FCA 330 GEORGE GREER v OFFICIAL TRUSTEE IN BANKRUPTCY N 158 OF 2002 EMMETT J 19 MARCH 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 158 OF 2002 BETWEEN: GEORGE GREER APPLICANT AND: OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 19 MARCH 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the bankrupt pay the costs of the Official Trustee of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 158 OF 2002 BETWEEN: GEORGE GREER APPLICANT AND: OFFICIAL TRUSTEE IN BANKRUPTCY RESPONDENT JUDGE: EMMETT J DATE: 19 MARCH 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 16 November 2001 Hely J made orders that included a declaration that George Stephen Greer ("the Bankrupt") was the legal and beneficial owner of land described as Lot 30 in Deposited Plan 239449 in the Parish of Field of Mars, County of Cumberland and known as 5 Blackwood Close, Beecroft ("the Beecroft property"). By notice of motion filed on 1 March 2002, the Bankrupt applied for an extension of time in which to file and serve a notice of appeal from the orders made by Hely J on 16 November 2001. 2 On 25 June 1998, Burchett J made a sequestration order against the estate of the Bankrupt on the petition of the Federal Commissioner of Taxation. At that time the Beecroft property was registered in the name of John Duffy. On 19 April 1999 Simpson J of the Supreme Court of New South Wales had made an order pursuant to s 22 of the Criminal Assets Recovery Act 1990 (NSW)that the interests in property of John Duffy in the Beecroft property be forfeited to vest in the Crown. 3 On 8 November 1999 the Bankrupt applied by way of motion in that proceeding seeking an order that he be permitted to bring an application to prevent forfeiture. On 5 May 2000 Simpson J ordered the motion be summarily dismissed. Thereafter, correspondence ensued between the present respondent, the Official Trustee in Bankruptcy, as the trustee of the estate of the Bankrupt ("the Trustee"), and the New South Wales Crimes Commission ("the Commission"). The correspondence was provoked by an enquiry from the Land Titles Office as to which took priority, vesting in the Trustee pursuant to the sequestration order or vesting in the Public Trustee pursuant to the order made by Simpson J. A proceeding to resolve that question were foreshadowed. 4 On 18 August 1999, agreement was reached between the Trustee and the Commission that the Public Trustee of New South Wales would become registered as the proprietor of the Beecroft property, sell it and hold the net proceeds of sale in trust pending the outcome of the foreshadowed proceeding. The proceeding before Hely J was the proceeding so foreshadowed. 5 In the proceeding before Hely J, the Trustee contended either that John Duffy and the Bankrupt are one and the same person, or that the name John Duffy is simply an alias adopted by the Bankrupt. Alternatively, if they are different persons, the Trustee contended that the Bankrupt is entitled to an equitable interest in the Beecroft property arising from contributions that he made to its purchase price in 1982 and from an agreement that he made with John Duffy at that time as to the sharing of any profit attributable to any subsequent increase in value of the Beecroft property. 6 When the matter came before His Honour on 18 July 2001 it was stood over until 23 August 2001 on the application of the Trustee. At that stage, there had been no appearance by the Bankrupt. However on 23 August 2001, the Bankrupt appeared, he having been notified of the adjournment. Notification of the adjournment was also given the Commission and the Public Trustee, who had been joined as respondent. Neither appeared on the adjourned date. On 23 August 2001, a further adjournment of the proceeding was sought by the Trustee to adduce further evidence. That application was acceded to and the hearing concluded on 2 November 2001. There was no appearance by any respondent on that date. 7 In his reasons for judgment, Hely J concluded, on the balance of probabilities, that he was satisfied that it was the Bankrupt who purchased the Beecroft property using the name of John Duffy. Hely J came to that conclusion because, as his Honour found, the Bankrupt had a motive to conceal his ownership of the Beecroft property. He himself said that at least the bulk of the funds for its purchase came from him and there was nothing to suggest that anybody called John Duffy thereafter had any association with the Beecroft property. The Bankrupt used the property as his home and it was a place at which he stored apparently stolen goods. The Bankrupt told a Ms Blaine, with whom he had a romantic attachment, that the Beecroft property was his. When the Bankrupt was imprisoned, payment of rates on the Beecroft property ceased. 8 There was clearly evidence before Hely J on which his Honour could base the conclusion that the name John Duffy, shown as the registered proprietor of the Beecroft property in the Land Titles Office, was an alias of the Bankrupt and that he was the legal and beneficial owner of the Beecroft property. 9 The Bankrupt has informed me that he was aware on the day on which Hely J gave judgment of the orders that were made and that he received a copy of the reasons at that stage. Nothing was done, however, until 1 March 2002 by way of lodging a notice of appeal or seeking an extension of time within which to lodge a notice of appeal. 10 Attached to the Bankrupt's notice motion is a draft notice of appeal, which specifies ten grounds. None of those grounds appears to me to have any substance whatsoever. On the material presently available to me, there appears to be no prospect that the appeal could succeed if leave were given for the notice of appeal to be filed out of time. Further, there has been no satisfactory explanation proffered by the Bankrupt as to why nothing was done within the 21 days after he received Hely J's reasons for his decision. In support of this application, the Bankrupt relied on two affidavits sworn by himself, substantial parts of which I rejected on the ground of improper form and irrelevance. There has been some suggestion that the Bankrupt consulted a lawyer in relation to the matter. However, I do not find the material compelling. Even now, the Bankrupt has not yet retained the services of any qualified lawyer to settle the notice of appeal. 11 A matter of significance in terms of the exercise of the Court's discretion is the action that has been taken by the Trustee following Hely J's order. On 16 November 2001, the solicitor acting for the Trustee wrote to the Public Trustee enclosing a copy of Hely Js orders and requesting that the Public Trustee to send to the Trustee the money held in trust following the sale of the Beecroft property. On 19 November 2001, the solicitor for the Trustee also wrote to the Commission enclosing a copy of Hely J's orders. 12 On 7 January 2002 the Trustee's solicitor received a cheque in the sum of $480,000 from the Public Trustee representing the proceeds of sale of the Beecroft property. That cheque was forwarded to the Trustee, who has now distributed that sum to creditors of the Bankrupt in the course of the administration of the bankrupt estate. That was done in circumstances where there had been no notification by the Bankrupt to the Trustee of his intention to appeal from the orders made by Hely J. 13 Even if I were persuaded that there had been a satisfactory explanation for the Bankrupt's failure to lodge a notice of appeal in time and if I were persuaded that there was at least an arguable ground of appeal, the fact that the Trustee has now changed his position by distributing the proceeds of the sale of the Beecroft property would be a matter that would have to be taken into account in the exercise of the discretion to extend the time for payment. I would be disposed to conclude that, in the absence of any notification by the Bankrupt of his intention to appeal, that change of position would be sufficient to preclude the grant of any extension of time. 14 In my view the application should be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 19 March 2002 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr M. Aldridge Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 13 & 19 March 2002 Date of Judgment: 19 March 2002