Sim v Sampson [2015] FCA 1145

FEDERAL COURT OF AUSTRALIA

Sim v Sampson [2015] FCA 1145 Citation: Sim v Sampson [2015] FCA 1145

Parties: ANDREW IAN SIM v DAVID HENRY SAMPSON

File number: NSD 1256 of 2015

Judge: MARKOVIC J

Date of judgment: 21 October 2015

Date of hearing: 21 October 2015

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 13

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Mr N Dale of Gillis Delaney Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1256 of 2015

BETWEEN: ANDREW IAN SIM

Applicant

AND: DAVID HENRY SAMPSON

Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 21 OCTOBER 2015 WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. An order for a stay of the execution of the writ be refused. 3. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1256 of 2015

BETWEEN: ANDREW IAN SIM

Applicant

AND: DAVID HENRY SAMPSON

Respondent

JUDGE: MARKOVIC J DATE: 21 OCTOBER 2015 PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This afternoon, the applicant, who is a bankrupt, filed an Application for an Extension of Time to Appeal and an affidavit which, among other things, annexes to it a Draft Notice of Appeal seeking to appeal from orders made in the Federal Circuit Court of Australia (FCCA) on 31 July 2015 and seeking an order staying the execution of a writ of possession. The respondent is the trustee of the applicant's bankrupt estate. The matter came before me for hearing of the application for a stay. 2 The evidence before me does not properly explain the time it has taken for the applicant to file his application for an extension of time to appeal: there is no proper explanation of the delay. Further, the Draft Notice of Appeal does not set out any arguable grounds of appeal. 3 The orders, which are the subject of the Draft Notice of Appeal, were made by the primary judge on 31 July 2015. One of those orders required that a sealed copy of the orders be served on the respondent within three days. There is no evidence before me as to whether that was done, but a submission has been made by the respondent's solicitor that service was so effected. Against that, a submission was made by the applicant that he did not receive a copy of the orders around the time they were made. The applicant has asserted that approximately 12 days ago, he obtained or received a copy of the orders of the primary judge made on 31 July 2015. 4 The Sheriff of New South Wales sent a letter dated 17 September 2015 to the applicant. The applicant says that he became aware of this letter approximately six days ago. The applicant complains that this letter has caused him confusion because it contains a statement that "the plaintiff has obtained an order from the Supreme Court for the possession of the lands and premises described hereunder". In fact, the order was obtained from the FCCA. However, the applicant was on notice of the proceedings before the FCCA, where the relevant orders were made which are the subject of the Draft Notice of Appeal, for some time. 5 The applicant has explained to me that he had solicitors acting in the FCCA proceedings in which the respondent sought orders for possession of the applicant's property until about May of this year, at which time the solicitors ceased acting. Subsequent to that, he appeared by telephone before the primary judge in connection with the application in which the orders the subject of the Application for Extension of Time to Appeal were made. The applicant, although aware of the listing on 31 July 2015 to hear the application for orders for possession and the issue of a writ of possession, was not present when that matter was heard. He has submitted to me that his car broke down on his way to court and that he was unable to attend but did contact the court. 6 In an affidavit sworn in support of the application before the primary judge, which was tendered on this application by the respondent, there is evidence that correspondence dated 25 February 2015 was sent to the applicant notifying him of the fact that the respondent has taken steps to have his interest in the premises the subject of the orders made by the primary judge on 31 July 2015 noted in the Torrens Title Register maintained by Land & Property Information and that he was now the registered proprietor. By the same letter, the first respondent directed the applicant to vacate the premises in accordance with a notice to vacate, which was attached to that letter. That is, the applicant has been on notice of the trustee's intended taking possession of those premises since at least late February 2015. 7 The applicant seeks a stay of execution of the writ, which is due to be executed tomorrow morning at 9:00 am. The applicant says that he came to court today expecting to see a registrar of the Supreme Court of New South Wales. He did so on the basis of the statement in the letter from the Sheriff of New South Wales, to which I have already referred. Upon seeing a registrar, he was directed to this Court. That was at around 4:30 pm this afternoon. I have heard extensively from the applicant and I have also heard from the respondent's solicitor. 8 Having considered the matter and the submissions and interests of both parties, I am not minded to grant the stay. In doing so, I take into account the fact that the applicant has been on notice of the trustee's intention for some time, was aware of the matter being listed before the primary judge on 31 July 2015 and, based on his oral submission, received a copy of the orders that were made 12 days ago. The fact that there was a statement in the letter from the Sheriff of New South Wales which said that the orders were made by the Supreme Court of New South Wales does not, in my view, cause sufficient concern or doubt for me to make an order in favour of the applicant granting a stay. 9 The applicant left his approach to the Court until today, despite being aware of the orders for at least 12 days. The letter from the Sheriff was otherwise clear. It indicated that the premises must be vacated prior to 9:00 am on Thursday, 22 October 2015. 10 I also take into account the fact that there are no proper or arguable grounds raised in the Draft Notice of Appeal in relation to the orders made by the primary judge. 11 On the other hand, I need to take into account the interests of the creditors. An order for the sequestration of the applicant's estate was made in December 2014. I understand from a submission made by the respondent's solicitor that the only asset in the bankrupt estate is the property which is the subject of the writ of possession. The amount owing to the creditors of the applicant is increasing daily. There is a secured creditor who has a mortgage over the property, and I have been informed by the respondent's solicitor that the applicant is in default, making the debt increase daily to the detriment of the unsecured creditors. 12 I have also been informed by the respondent's solicitor that it will take some time to prepare the property for sale and to submit it to the market. In those circumstances, I do not believe that refusing to grant a stay of the orders will render any appeal by the applicant nugatory. He will still be able to pursue his application for an extension of time to appeal the orders of the primary judge made on 31 July 2015. 13 Taking all of those matters into account, in the exercise of my discretion, I refuse to make an order for a stay of the execution of the writ. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.