Kordatos v Sweeney [2004] FCA 1487

FEDERAL COURT OF AUSTRALIA

Kordatos v Sweeney [2004] FCA 1487 PRACTICE AND PROCEDURE – appeals – application for extension of time in which to file notice of appeal – judicial discretion – grounds not made out Bankruptcy Act 1966 (Cth) Jess v Scott (1986) 12 FCR 187 Howard v Australian Electoral Commission [2000] FCA 1767 QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 McGoldrick v Official Trustee in Bankruptcy (1993) 47 FCR 547 House v The King (1936) 55 CLR 499 STEVE KORDATOS v PAUL SWEENEY Q199 OF 2003 COOPER J BRISBANE 17 NOVEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q199 OF 2003

BETWEEN: STEVE KORDATOS

APPLICANT

AND: PAUL SWEENEY

RESPONDENT

JUDGE: COOPER J

DATE OF ORDER: 17 NOVEMBER 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including any reserved costs, of and incidental to the application to be taxed if not agreed.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q199 OF 2003

BETWEEN: STEVE KORDATOS

APPLICANT

AND: PAUL SWEENEY

RESPONDENT

JUDGE: COOPER J

DATE: 17 NOVEMBER 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal.

BACKGROUND 2 The applicant became bankrupt on 15 July 1996. The respondent was the trustee of his bankrupt estate. On 11 October 1999 the bankruptcy was annulled by a resolution of creditors under s 74 of the Bankruptcy Act 1966 (Cth) ('the Act'). On that date the respondent became, and thereafter acted, as trustee under a Deed of Composition between the applicant and his creditors. Under the composition the applicant was to pay to the respondent as trustee $80,000 to be administered in accordance with the terms of the composition. 3 The Deed of Composition dealt with the trustee's remuneration and provided for remuneration to be paid for the administration of the bankrupt estate, the implementation of the composition and its administration at the hourly rate recommended by the Insolvency Practitioners Association of Australia. The Deed of Composition also provided that the trustee was entitled to pay expenses incurred from the composition fund. The creditors on 11 October 1999 resolved as a condition of acceptance of the applicant's proposal that the trustee's remuneration should be paid in the same proportion as dividend payments to the unsecured creditors. The trustee accepted such a limitation. 4 On 17 December 1999 the respondent by letter of that date, advised the applicant that the terms of the composition had been completed and provided to him a Trustee's Account of Receipts and Payments which accounted for the receipt and disposition of the sum of $80,000 paid by the applicant to the trustee. On 17 January 2000 the respondent, in response to a request from the applicant, provided details of the two creditors to whom a dividend had been paid. These were Conroy and Associates (the petitioning creditor's debt $25,530; dividend $19,402.80) and the Australian Taxation Office (debt $2,155; dividend $1,637.80). The letter advised that the balance of the sum of $80,000 was paid as to $7,216 for the taxed costs of the petitioning creditor with the remainder being applied to the trustee's costs, outlays and remuneration. 5 On 13 July 2001 the applicant gave to the respondent a notice requiring taxation of the trustee's remuneration. The respondent refused to do so on the basis that the period of 14 days within which such a demand could be made had expired: see reg 8.09 of the Bankruptcy Regulations. 6 On 4 January 2002 the applicant filed in the Federal Magistrates Court an application against the respondent which sought the following orders: 'I am seeking a Court Order to review the decision of the Trustee who refuses to provide me with bills in a taxable form for the $80,000.00 he received from my estate. Being privy to this matter, I believe the Court can assist me by invoking Section 178 of the Bankruptcy Act 1966 (s 33 may also be relevant) and thus order the Trustee to submit a bill for taxation.' 7 The applicant was self represented in the Federal Magistrates Court. On 16 October 2003 the application was dismissed. 8 On 17 December 2003 the applicant applied to this Court for an extension of time within which to file and serve a notice of appeal from the decision of the Federal Magistrate given on 16 October 2003. The application named both the trustee and Federal Magistrate as respondents. Before this Court, the applicant is again self-represented.