Ghosh v Miller (No 3) [2017] FCA 1617

FEDERAL COURT OF AUSTRALIA

Ghosh v Miller (No 3) [2017] FCA 1617 File number: NSD 1735 of 2016

Judge: PERRAM J

Date of judgment: 22 December 2017

Catchwords: PRACTICE AND PROCEDURE – application for stay pending outcome of special leave application in High Court of Australia

Cases cited: Ghosh v Miller [2016] FCA 1293 Ghosh v Miller (No 2) [2017] FCA 890 Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327

Date of hearing: 22 December 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: 12

Counsel for the Applicant: Mr C Carter

Solicitor for the Applicant: Vaikom Rajeev – Criminal and Commercial Lawyers

Counsel for the Respondent: Mr M Maconachie

Solicitor for the Respondent: Higgins & Dix

ORDERS NSD 1735 of 2016

BETWEEN: RATNA GHOSH Applicant

AND: RODNEY MILLER Respondent

JUDGE: PERRAM J DATE OF ORDER: 22 DECEMBER 2017

THE COURT ORDERS THAT:

1. The Interlocutory Application filed on 20 December 2017 be dismissed. 2. The Applicant pay the Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J: 1 This is an application for a stay of proceedings under a sequestration order which was made by Judge Manousaridis in the Federal Circuit Court on 30 September 2016. 2 The Applicant has subsequently brought an appeal to this Court. Some form of stay was granted by Markovic J in this Court pending the hearing of the appeal: Ghosh v Miller [2016] FCA 1293. The appeal was eventually heard by Farrell J who, on 8 August 2017, dismissed it: Ghosh v Miller (No 2) [2017] FCA 890. The form of stay which had been granted by Markovic J expired upon the determination of the proceedings. The chronology of events is as follows. 3 After judgment was given by Farrell J on 8 August 2017, the trustee in bankruptcy placed a caveat on some of the bankrupt's property on 14 August 2017, and in early September, it appears the bankrupt became aware of this. Attempts to achieve a consensual continuation of the stay seem to have petered out by about 5 October 2017 when the trustee refused to agree to it. On 21 November 2017, the trustee began to take steps to assert an entitlement to receive rents from at least one of the properties. In response to that, it appears that the bankrupt sought legal advice on 21 November 2017, and on 27 November 2017, it appears that she applied for a stay; however, the documents were not in the proper form and the registry refused to accept them, expressing the opinion that they were an abuse of process. A similar thing occurred on 4 December 2017, and those papers were rejected on 7 December 2017. 4 Since the order which was sought in those two documents was an order staying Farrell J's order dismissing the appeal, it is readily understandable why the registry refused them, as an application for relief which made no sense. It was on 14 December 2017 that the present application was eventually made (registry accepted it for filing on 20 December 2017). At that point, the bankrupt was assisted by Mr Carter who had been acting on a direct basis and who put the documents in a better condition. 5 Subsequent to Farrell J's decision, the Applicant has filed an application for special leave to appeal in the High Court and is represented by counsel in that application which has not yet been heard. It is not clear whether it is to be determined on the papers or whether there is to be a hearing. The form of this application, therefore, is an application for a stay pending the determination by the High Court of a special leave application. 6 The principles which apply to the application for a stay in such circumstances are essentially the same as those which apply to the grant of an interlocutory injunction subject to a minor qualification. It must therefore be shown that there is an arguable case that the special leave application and any subsequent appeal will succeed and it must be shown that the balance of convenience favours the stay (for those propositions see Minister for Local Government v South Sydney City Council (No 3) [2002] NSWCA 327 ('South Sydney City Council') at [12] per Spigelman CJ). 7 The slight qualification is that there is authority for the proposition that an intermediate court of appeal, which is effectively what I am sitting as at the moment, 'should not be diffident in granting a stay or an injunction, in an appropriate case, notwithstanding the difficulty that may sometimes be occasioned for a member of an intermediate court of appeal in making an assessment of the prospects of a grant of special leave in a particular case.' (see South Sydney City Council at [11]). 8 I propose to proceed upon the basis that the Applicant has an arguable case for special leave and for her appeal eventually being allowed; therefore, the question is really to be determined on the balance of convenience. One part of the Applicant's case was that – and it is at the front and centre of her submissions – she would suffer irremediable prejudice unless the stay were granted. It should be understood in that context that the particular difficulties which were pointed to were the presence of the caveat on the property and also the recent actions of the trustee in seeking to take the rents. 9 I do not think that those constitute irremediable prejudice. If, ultimately, the appeal in the High Court is successful, the caveats can be removed, and to the extent to which rent has been paid to the trustee, it can be refunded. In response to that, Mr Carter submitted that his client needed the rental flow now because she was on a limited income of $23,000 per annum. That may be so; however, that seems to me to be an ordinary consequence of bankruptcy. 10 In my view, there was delay in bringing this application. It was not an enormous delay, but a delay nevertheless it was. It was on 21 November 2017 that the trustee first moved relevantly and yet this application was not made until 14 December 2017. I appreciate that earlier attempts to make the application were pursued and these were unsuccessful, but the lack of legal acumen in drawing them lies to the account of the bankrupt and not to the respondents to the application. That said, I do not think the delay was necessarily inordinate; however, in my view, the application for a stay should be refused. 11 Taking into account the moderate delay which occurred and what appears to me to be the absence of any irremediable prejudice, I am not disposed to think that this is a case where a stay should be granted. Accordingly, I refuse the application for a stay. 12 I order that: (1) The Interlocutory Application filed on 20 December 2017 be dismissed. (2) The Applicant pay the Respondent's costs as taxed or agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.