FEDERAL COURT OF AUSTRALIA Boensch v Pascoe (No 3) [2017] FCA 215 Appeal from: Application for an extension of time to appeal: Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882 File number: NSD 1448 of 2016 Judge: GLEESON J Date of judgment: 9 March 2017 Catchwords: PRACTICE AND PROCEDURE – application to vary or set aside order – application refused Legislation: Federal Court Rules 2011 Cases cited: Autodesk Inc v Dyson (No 2) [1993] HCA 6; (1993) 176 CLR 300 Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724 Date of hearing: 6 March 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr CJ Bevan Solicitor for the Applicant: Madison Marcus Law Firm Counsel for the Respondent: Mr MF Newton Solicitor for the Respondent: Gilchrist Connell ORDERS NSD 1448 of 2016 BETWEEN: FRANK BOENSCH AS TRUSTEE OF THE BOENSCH TRUST Applicant AND: SCOTT DARREN PASCOE Respondent JUDGE: GLEESON J DATE OF ORDER: 9 MARCH 2017 THE COURT ORDERS THAT: 1. The interlocutory application filed 2 March 2017 be dismissed. 2. The applicant file and serve a notice of appeal in accordance with order 1 made on 27 February 2017 by 16 March 2017. 3. Order 6 made on 27 February 2017 be varied by deleting "within 21 days" and inserting "by 30 March 2017". 4. The respondent file and serve any notice of contention by 6 April 2017 or 21 days after the applicant gives security in accordance with order 5 made on 27 February 2017 and order 6 made on 27 February 2017 as varied by order 3 above, whichever is the later. 5. Costs of the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GLEESON J: 1 On 27 February 2017, I delivered judgment on Mr Boensch's application for an extension of time to appeal: Boensch v Pascoe (No 2) [2017] FCA 146. Relevantly, I ordered that: 1. [Mr Boensch] be granted an extension of time to file a notice of appeal including grounds 3 to 6, 10 and 14 to 17 of the notice of appeal being annexure "DWL 15" to the affidavit of David Winston Low sworn 15 August 2016 ["notice of appeal"], ground 17 to be amended in accordance with [90] of the reasons for judgment published today. 2. Otherwise, the application for an extension of time dated 25 August 2016 be refused. 2 By orders 6, 7 and 8, I made orders for the provision by Mr Boensch of security for the costs of the appeal. 3 Mr Boensch now applies pursuant to rr 39.04 and 39.05 of the Federal Court Rules 2011 for orders including an order that orders 1, 2, 6, 7 and 8 made on 27 February 2017 and paragraph 31 of the reasons for judgment of that date be set aside. Instead, Mr Boensch seeks orders granting an extension of time including grounds 8, 9, 11, 13, 18 and 19 of the notice of appeal, as well as the grounds referred to in order 1. 4 Mr Boensch also seeks orders extending the time for security for costs to be given to 21 days from the date of this judgment and for orders displacing orders 7 and 8 of the orders made on 27 February 2017 to reflect this new timeline. 5 Paragraph 31 of the reasons states: Counsel for Mr Boensch, Mr Bevan, did not make any separate submissions concerning grounds 8, 9, 11, 13, 18 and 19 of the notice of appeal. In the absence of any formulation of an argument which can properly be advanced in support of those grounds of appeal, I am not satisfied that an extension of time to appeal should be granted on those grounds. 6 There is no dispute about the accuracy of the first sentence of [31], but Mr Bevan submits that [31] is informed by a misapprehension of fact, being that grounds 8, 9, 11, 13, 18 and 19 were abandoned by Mr Boensch. 7 The application was supported by an affidavit of David Winston Low sworn on 1 March 2017. The following facts are not disputed: (1) on the application for an extension of time, the respondent ("Mr Pascoe") lodged written submissions in advance of Mr Boensch and those submissions did not separately address grounds 8, 9, 11, 13, 18 and 19; (2) the applicant only directed written submissions in support of the extension of time to those grounds addressed by Mr Pascoe in his written submissions; (3) no oral submissions were made by either party in relation to grounds 8, 9, 11, 18 and 19; and (4) Mr Newton, counsel for Mr Pascoe, made submissions concerning ground 13 in response to a question from the Court. Relevant principles 8 Where a court has adopted a proposition of fact or law which the unsuccessful party has not had a reasonable opportunity to argue, there may be a denial of procedural fairness if that party is not allowed to reopen argument for the purpose of meeting the adverse proposition: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 309; Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (No 2) [2007] FCAFC 41; (2007) 239 ALR 724 ("Venus") at [6]. 9 On an application to vary or set aside a judgment, the court will ordinarily consider whether the application is one which it should entertain, reflecting the necessary caution with which the court will consider such an approach: Venus at [8]. Consideration 10 In this case, it is unnecessary to consider whether there was the misapprehension of fact identified by Mr Bevan because the application lacks utility. It lacks utility because grounds 8, 9, 11, 13, 18 and 19 do not add anything to the grounds in respect of which an extension of time was granted on 27 February 2017. Grounds 8, 9 and 11 11 These grounds are as follows: 8. The primary judge erred by finding that the respondent's asserted claim to have a "legal interest" in the property, as a trustee in bankruptcy, in schedule 1 to his Caveat, should be construed as an estate or interest which vested in the respondent pursuant to s 58(1)(a) of the Bankruptcy Act when he became the appellant's trustee in bankruptcy, because the phrase "legal estate pursuant to the Bankruptcy Act 1966" is a phrase apt to describe an interest, as a matter of law, pursuant to statute and, accordingly, it should not be read as expressing an intention to confine the claim to only a legal interest in the property as opposed to an equitable interest in the property. 9. The primary judge erred by finding that the expression "legal interest pursuant to the Bankruptcy Act 1966" was apt to describe an equitable interest in the property or, alternatively, that its use was a mere technical deficiency in the drafting of the Caveat. 11. The primary judge erred by failing to conclude that his findings about the standard form of words used by the respondent in formulating his Caveat supported the appellant's construction of schedule 1 of the Caveat, namely, that the Caveat claimed the standard case of a legal and beneficial estate in fee simple, rather than supporting the respondent's construction, which could only ever apply to the unusual or rare case of a registered proprietor who is the bankrupt trustee of a trust over the subject land. 12 Mr Newton submitted that these grounds do no more than identify arguments in support of ground 10, in respect of which an extension of time to appeal was granted. 13 Ground 10 states relevantly: The primary judge erred when he found that the respondent had a caveatable interest by virtue of s 58(1)(a) of the Bankruptcy Act, that he had claimed such an interest for the purposes of s 74F(1)(a) of the Real Property Act … 14 I agree with Mr Newton. Mr Boensch does not need an extension of time to appeal in respect of grounds 8, 9 and 11 because he can argue the matters raised in those grounds in support of ground 10. Ground 13 15 Ground 13 states: The primary judge erred by failing to conclude that the findings of those federal courts necessarily informed the reasonableness of the respondent's belief in the existence of a caveatable interest which treated the appellant as owner of an estate in fee simple. 16 Read in the context of ground 12, "those federal courts" refers to the Federal Magistrates Court and Full Federal Court. 17 Mr Newton submitted that ground 13 adds nothing to ground 14, in respect of which an extension was granted. Ground 14 states: The primary judge erred by finding that the caveatable interest claimed in the caveat was one which he believed in and that that belief was reasonable. 18 Mr Newton is correct. Ground 13 simply identifies (although without particularity) a basis, or some bases, for the argument that the primary judge erred in finding that Mr Pascoe's belief in the existence of the caveat was based on reasonable grounds, the basis or bases being findings of the Federal Magistrates Court and the Full Federal Court which Mr Boensch wishes to say necessarily informed the reasonableness of Mr Pascoe's belief. 19 Accordingly, there is no utility in granting an extension of time to appeal on ground 13. Grounds 18 and 19 20 Ground 18 is: The primary judge erred when he found that nothing turned on the failure of the respondent to obtain any legal advice before he lodged the Caveat because nothing stated in Bedford Properties Pty Ltd v Surgo (1981) 1 NSWLR 106 at 109 renders the failure by a caveator to obtain legal advice at that time to be unreasonable conduct. 21 Ground 19 is: The primary judge erred when he failed to find that, irrespective of what was stated in Bedford Properties Pty Ltd v Surgo Pty Ltd [1981] 1 NSWLR 106 about not obtaining any legal advice, the respondent's failure to obtain any legal advice before he lodged the Caveat was unreasonable conduct for the purposes of s. 74P(1)(c) of the Real Property Act. 22 Mr Bevan identified the relevant passages of the primary judge's reasons (Franz Boensch as trustee of the Boensch Trust v Scott Darren Pascoe [2015] NSWSC 1882) at [118] to [120] and [132]. As Mr Newton observed, [118] to [120] are concerned with events that occurred well after the lodgement of the caveat: they do not contain a finding of the kind identified by ground 18. 23 The relevant passages are at [132] and [133]. They are expressed as reasons in relation to matters that the primary judge had not found it necessary to deal with in the reaching the conclusion that Mr Boensch had failed to establish that, at any relevant time, Mr Pascoe's belief as to the existence of a caveatable interest was not based on reasonable grounds. 24 Mr Newton submitted, by reference to [26] of the primary judge's reasons, that his Honour had not found that Mr Pascoe failed to obtain any legal advice before he lodged the Caveat. Conversely, Mr Bevan's submissions stated that "[t]here is no issue that no such legal advice was ever sought". I will not make a finding about the scope of the primary judge's findings on this application, which may involve a consideration of the scope of the argument before his Honour. 25 However, I accept that grounds 18 and 19 raise a basis upon which the appellant may argue that the primary judge erred in his conclusion that Mr Pascoe's belief as to the existence of a caveatable interest was reasonable. That basis is the failure to obtain legal advice before the lodgement of the caveat. 26 As with ground 13, this argument falls within the scope of ground 14. 27 Accordingly, there is no utility in granting an extension of time to appeal on ground 18 or ground 19. 28 Given that I will not make orders granting an extension of time to appeal on any of grounds 8, 9, 11, 13, 18 or 19 of the notice of appeal, there is no occasion to set aside orders 6, 7 and 8 made on 27 February 2017. However, I will vary order 6 to grant a short extension of the time for compliance with order 6. Conclusion 29 The application will be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate: Dated: 9 March 2017