Michael Wilson & Partners Ltd v Porter

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 01 April 2022
• Neutral Citation: [2022] FCA 336
• Date: 01 April 2022

Federal Court of Australia

Michael Wilson & Partners Ltd v Porter [2022] FCA 336

Appeal from:	Application for extension of time and leave to appeal: Porter, in the matter of Slater (No 3) [2021] FCA 688
File number:	NSD 767 of 2021
Judgment of:	STEWART J
Date of judgment:	1 April 2022
Catchwords:	PRACTICE AND PROCEDURE – application for leave to appeal – where applicant not a party in proceeding below – where judgment appealed from includes both final and interlocutory orders – where draft amended notice of appeal seeks to raise new grounds – where amounts in dispute are modest and stakes in the appeal are low – where no substantial injustice would arise if leave to appeal were to be refused – where grant of leave for the applicant to pursue litigation described as “seemingly interminable” and “pathological” would be contrary to s 37M of the Federal Court of Australia Act 1976 (Cth) – leave to appeal refused
Legislation:	Bankruptcy Act 1966 (Cth) Corporations Act 2001 (Cth) s 511 (repealed), Sch 2 (Insolvency Practice Schedule (Corporations)) s 90-15 Cross Border Insolvency Act 2008 (Cth) s 6, Sch 1 (Model Law on Cross Border Insolvency of the United Nations Commission on International Trade) Arts 2, 17, 21, 22 Federal Court of Australia Act 1976 (Cth) ss 24(1A), 37M Federal Court (Bankruptcy) Rules 2005 (Cth) rr 2.03, 14.03 Federal Court Rules 2011 (Cth) rr 2.25(3)(b), 35.13, 36.03, 36.05
Cases cited:	Anying Group Pty Ltd v Wang [2012] FCA 702 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 Computer Edge Pty Ltd v Apple Computer Inc [1984] HCA 47; 54 ALR 767 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2011] FCAFC 89; 281 ALR 38 Georges v Seaborn International Pty Ltd (Trustee) [2012] FCA 294 Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572; 104 FCR 564 Kireeva v Bedzhamov [2021] EWHC 2281 (Ch) Kireeva v Bedzhamov [2022] EWCA Civ 35 In re Kooperman (1928) 13 B&CR 49; [1928] WN 101 Michael Wilson & Partners Ltd v Emmott [2019] EWCA Civ 219; [2019] 4 WLR 53 Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; 396 ALR 497 N and E Bowder Pty Ltd v Australian Keg Company Pty Ltd [2014] FCA 288; 220 FCR 166 Nationwide News Pty Ltd v Rush [2018] FCAFC 70 Palmer (Trustee), in the matter of Slater (Bankrupt) (No 2) [2016] FCA 960 Palmer v Registrar-General of Land Titles of the Australian Capital Territory [2017] ACTSC 407; 181 ACTR 1 Power Ledger Pty Ltd v Griffiths [2021] FCA 624; 308 IR 147 Rickus v Motor Trades Association of Australia Superannuation Fund Pty Ltd [2010] FCAFC 16; 265 ALR 112 Re Universal Distributing Co Ltd [1933] HCA 2; 48 CLR 171 University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	62
Date of hearing:	1 April 2022
Counsel for the Applicant:	D M J Bennett QC, A L Tokley QC and R G Thomas
Solicitor for the Applicant:	M E Wilson
Counsel for the Respondents:	S Golledge SC and N Bailey
Solicitor for the Respondents:	Mills Oakley

ORDERS

		NSD 767 of 2021
BETWEEN:	MICHAEL WILSON & PARTNERS LTD Applicant
AND:	JASON LLOYD PORTER First Respondent ; RICHARD MORETTI Second Respondent

order made by:	STEWART J
DATE OF ORDER:	1 APRIL 2022

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed.

2. Leave to appeal be refused.

3. The respondents’ application for security for costs be dismissed.

4. The proceeding be dismissed with costs, such costs to include all the costs of the proceeding.

5. The respondents’ costs be quantified on a lump sum basis.

6. On or before 21 April 2022, the respondents file and serve an affidavit constituting a costs summary in accordance with paragraphs 4.10 to 4.12 of the Costs Practice Note (GPN-COSTS).

7. On or before 5 May 2022, the applicant file and serve any affidavit constituting a costs response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS.

8. On or before 12 May 2022, the parties file and serve any submissions (not exceeding five pages) in support of their respective positions.

9. The quantification of the lump sum be referred to a Registrar of the Court for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

STEWART J:

Introduction

1. This is an application for an extension of time and for leave to appeal against a judgment of a single judge of the Court. There is also a conditional cross-application for security for costs in the event that leave to appeal is granted.

2. Back in August 2016, the Court made orders pursuant to s 6 of the Cross Border Insolvency Act 2008 (Cth) (CBI Act), Art 17(1) of the Model Law on Cross Border Insolvency of the United Nations Commission on International Trade and r 14.03 of the Federal Court (Bankruptcy) Rules 2005 (Cth) (Bankruptcy Rules): Palmer (Trustee), in the matter of Slater (Bankrupt) (No 2) [2016] FCA 960 (Gleeson J). The orders recognised the administration of the bankrupt estate of David Ross Slater by Julie Palmer as trustee pursuant to a bankruptcy proceeding in the Croydon County Court in the United Kingdom as a foreign proceeding and a foreign main proceeding within the meaning of Arts 2(a) and 2(c) of the Model Law, respectively.

3. There were also orders pursuant to s 6 of the CBI Act and Arts 21(1)(e) and (g) of the Model Law entrusting the administration and realisation of all Mr Slater’s assets located in Australia to Jason Lloyd Porter and Richard Moretti as local representatives of the trustee, and giving them all powers normally available to a trustee in bankruptcy appointed under the provisions of the Bankruptcy Act 1966 (Cth). Messrs Porter and Moretti are the respondents in the present proceeding.

4. The proceeding below was commenced in April 2020 by the respondents as the local representatives of the trustee. Having realised the Australian assets of the bankrupt estate of Mr Slater, they sought and were ultimately granted, on 25 June 2021, orders to the following effect:

1. Declaring that the respondents are entitled to be paid a certain sum, namely $128,221, in payment of the costs, charges and expenses of the administration of their appointment, and that that sum be paid as a priority payment in accordance with s 109 of the Bankruptcy Act;

2. Declaring that the respondents are justified in paying Michael Wilson & Partners Ltd (MWP) a certain sum, namely $18,815, as a priority payment;

3. Quantifying, on a lump-sum basis, the costs of a previous costs order against MWP in the proceeding in the sum of $9,125;

4. Ordering MWP to pay the costs of the proceeding in the lump sum of $39,568;

5. Providing for those lump sum costs orders to be set off against the priority payment amount referred to in order (2); and

6. Discharging the respondents from their appointment as local representatives of the trustee.

(See Porter, in the matter of Slater (No 3) [2021] FCA 688 (Markovic J).)

5. MWP is the applicant for leave to appeal. It seeks by a draft amended notice of appeal to have all the orders below set aside,...