FEDERAL COURT OF AUSTRALIA Mathai v Kwee (No.3) [2005] FCA 720 MATHAI V KWEE (No.3) NSD 596 OF 2005 GRAHAM J 26 MAY 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 596 OF 2005 BETWEEN: MATHEW KERALAVAKAYIL MATHAI APPLICANT AND: LOW MOOI KWEE FIRST RESPONDENT LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt SECOND RESPONDENT JUDGE: GRAHAM J DATE OF ORDER: 26 MAY 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave be granted to the Applicant to file in Court an amended application dated 27 April 2005. 2. The costs of the application to amend be costs in the proceedings. 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 NSD 596 OF 2005 BETWEEN: MATHEW KERALAVAKAYIL MATHAI APPLICANT AND: LOW MOOI KWEE FIRST RESPONDENT LOKE CHING WONG As Trustee of THE PROPERTY OF MATHEW KERALAVAKAYIL MATHAI, a Bankrupt SECOND RESPONDENT JUDGE: GRAHAM J DATE: 26 MAY 2005 PLACE: SYDNEY REASONS FOR JUDGMENT GIVEN EX TEMPORE 1 This is an application made by the applicant for leave to amend the application filed 19 April 2005. That application seeks by way of substantive relief an order pursuant to s 153B of the Bankruptcy Act 1966 (Cth) that the bankruptcy of the applicant be annulled. 2 It is common ground that on 28 April 2005 a letter was sent by facsimile by the applicant's solicitors to the legal representatives for the First and Second Respondents giving notice of an intention to seek leave at the hearing to file an amended application seeking additional relief. The manner in which the draft amended application has been expressed seeks firstly an order under Order 3 Rule 3 of the Federal Court Rules extending the time within which a review of the decision of Registrar Wood of 18 May 2004 may be brought under Order 77 Rule 8(2) of the Federal Court Rules. 3 If that leave is granted it further seeks an order that the decision of Registrar Wood of 18 May 2004 in proceedings VID 2/2004 be set aside upon a ground that is there specified. Namely, that at the time when the alleged act of bankruptcy described in the creditor's petition was said to have been committed, the Applicant was not a person falling within paragraphs (i) – (iv) of s 43(1)(b) of the Bankruptcy Act 1966 (Cth) or any of them. 4 When this matter was before me for directions it was indicated by counsel for the First Respondent that the First Respondent would seek to establish in the alternative to the act of bankruptcy relied upon in the proceedings before Registrar Wood, an act of bankruptcy said to have been committed by the applicant under s 40(1)(c)(i) of the Bankruptcy Act 1966 (Cth). Namely that the Applicant, with intent to defeat or delay his creditors, departed or remained out of Australia. 5 In the course of the hearing of the application before me counsel for the First Respondent has particularised that alleged act of bankruptcy as being one said to have been committed on 28 or 29 December 2003 and continuing. 6 The primary issue on the annulment application or on the review proceedings would appear to be a question of whether or not it was within the jurisdiction of the court to make a sequestration order in respect of the estate of the Applicant. Whilst there may be different issues arising in relation to the burden of proof, it seems to me that no relevant prejudice can be occasioned by allowing the amendment and proceeding to have a hearing of the issues concurrently. 7 Mr Gasic has submitted that in the letter of 28 April 2005 giving notice of the intended amendment, there was no indication to the effect of, if we do not hear from you we will assume you consent to the amendment. It is quite correct to say that the letter is not expressed in those terms, but it is equally correct to say that there was no response to the letter of 28 April 2005 indicating that the application for amendment would be opposed. Mr Gasic secondly submits that an extension of time would be inappropriate in circumstances where there is no evidence that the applicant had notice of the sequestration order that had been made until 10 April 2005, as alleged by Mr Johnson from the bar table. 8 Applications were made to re-open the evidence on the application for amendment by both sides. Leave was granted and there has been evidence given by the Applicant, Mr Mathew Mathai, and evidence also given by his son, Mr Gerald Lee Mathai. There has also been read an affidavit of Peter Jones sworn 15 April 2004 which clearly demonstrates that on 13 April 2004 a bundle of documents was served on Mr Gerald Mathai in Victoria, which included a creditors petition. 9 For the purposes of this application it is unnecessary for me to address the terms of a communication which then took place between Mr Gerald Mathai in Victoria and his father who was then in Malaysia. Suffice it to say that Mr Gerald Mathai was seized of the fact that the documents included something which he described as a summons to go to court addressed to his father, that there was some discussion between Mr Gerald Mathai and his father about the documents, and that the father gave certain instructions to the son as to how the documents were to be dealt with. 10 The requirement of Order 77 Rule 8 is that an application for review of a decision must be made within 21 days of the date of the decision. There is no indication in the Rules that the power of the court to grant an extension of time nunc pro tunc should not be permitted in relation to that 21 day time limit. 11 The evidence on the application is that Mr Mathai first learnt of the sequestration order having been made against him on 10 April 2005 when he attempted to board a plane to return to Malaysia after a short visit to Australia, which commenced on 1 April 2005. It is common ground that the sequestration order was made on 18 May 2004 in the absence of the Applicant. The application for annulment was in fact instituted on 19 April 2005 which, according to the Applicant, is nine days after he first learnt of the sequestration order having been made. 12 This is an interlocutory application. There is no evidence to contradict the evidence of the Applicant that he first learnt of the sequestration order on 10 April 2005, even though on the evidence it would appear that he may have had good reason to suspect that a sequestration order might be made some time after he spoke with his son about the service upon Mr Gerald Mathai of a bundle of documents on 13 April 2004. 13 In the circumstances I am of the opinion that leave should be granted to the Applicant to file in court the foreshadowed amended application and I grant that leave. 14 I will order that the costs of the amendment be costs in the proceedings. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham. Associate: Dated: 2 June 2005 Counsel for the Applicant: Mr J Johnson Solicitor for the Applicant: PH Legal Counsel for the First Respondent: Mr D Gasic Solicitor for the First Respondent: Robinson Legal Counsel for the Second Respondent Ms E Glover Solicitors for the Second Respondent Douros Lawyers Date of Hearing: 26 May 2005 Date of Judgment: 26 May 2005