Hrycenko v Hrycenko (by his legal representative Hycenko) [2022] FCAFC 152
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Appeal from: |
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File number: |
VID 682 of 2021 |
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Judgment of: |
BROMBERG, MOSHINSKY AND MCELWAINE JJ |
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Date of judgment: |
9 September 2022 |
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Catchwords: |
PRACTICE AND PROCEDURE– power of the Court to invoke the “slip rule” to extend the term of a creditor’s petition under the Bankruptcy Act 1966 (Cth) – where 12-month period had expired – whether slip rule available to retrospectively extend life of a creditor’s petition where sequestration order already made – whether there was a relevant accidental slip or omission
BANKRUPTCY AND INSOLVENCY –whether it was open to the Federal Circuit and Family Court of Australia (Division 2) to invoke the slip rule to extend the term of a creditor’s petition after 12-month period expired and sequestration order made |
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Legislation: |
Acts Interpretation Act 1901 (Cth) s 13(1) Bankruptcy Act 1966 (Cth) ss 5, 43, 44, 52, 58, 60, 115, 157 Corporations Act 2001 (Cth) s 459P Corporations Act 1989 (Cth) s 82 (Corporations Law) ss 459A, 459G, 459P, 459R Federal Circuit Court of Australia Act 1999 (Cth) s 8 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 10 Federal Court of Australia Act 1976 (Cth) s 35A(6) National Security (War Service Moratorium) Regulations 1941 (Cth) r 22 Federal Circuit Court Rules 2001 (Cth) r 16.05 Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) r 4.02 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05 Federal Court Rules 1979 O 35 r 7 Companies Act 1961 (Vic) s 199 |
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Cases cited: |
Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; [2018] NSWCA 245 Amorin Constructions Pty Ltd v Kamtech Electrical Services Pty Ltd (2008) 73 NSWLR 627; [2008] NSWSC 285 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 Bonesch v Somerville Legal (2021) 286 FCR 293; [2021] FCAFC 79 Cameron v Cole (1944) 68 CLR 571 David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385 Emanuele v Australian Securities Commission (1995) 63 FCR 54 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Endresz v Commonwealth (2019) 273 FCR 286; [2019] FCAFC 197 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375; [2013] FCAFC 131 Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554; [2006] FCAFC 149 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Hrycenko (by His Legal Representative Hycenko) v Hrycenko [2021] FedCFamC2G 187 Hrycenko (by His Legal Representative Hycenko) v Hrycenko [2022] FedCFamC2G 2 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 145 FCR 1; [2003] FCAFC 288 L Shaddock & Associates Pty Ltd v Parramatta City Council (1982) 151 CLR 590 Luck v University of Southern Queensland (2018) 265 FCR 304; [2018] FCAFC 102 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Mutual Shipping Co of New York v Bayshore Shipping Co of Monrovia [1985] 1 All ER 520 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 R v A2 (2019) 269 CLR 507; [2019] HCA 35 Ramsay Health Care Australia Pty Ltd v Compton (2016) 247 FCR 387; [2016] FCAFC 125 Re Agushi; Ex parte Farrow Mortgage Services Pty Ltd (in liquidation) (1994) 126 ALR 704 Re Hibbard; Ex parte Playroom Pty Ltd [1988] FCA 689 Re Langridge: Ex parte Bennett, Carroll & Gibbons [1998] FCA 879 Re Testro Bros Consolidated Ltd [1965] VR 18 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Re Young; Ex parte Smith (1985) 5 FCR 204 Robson (as former trustee of the bankrupt estate of Samakopoulos) v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143. Rothmore Farms Pty Ltd (in liquidation) v Belgravia Pty Ltd (1999) 17 ACLC 1,676 Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317; [2019] NSWCA 11 Sutherland and Company v Hannevig Brothers Ltd [1921] 1 KB 336 Tonab Investments Pty Ltd v Optima Developments Pty Ltd (2015) 90 NSWLR 268; [2015] NSWCA 287 |
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Committee Appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth, Report of the Committee Appointed by the Attorney-General of the Commonwealth to Review the Bankruptcy Law of the Commonwealth, (Canberra, 1962) (Clyne Report) Macquarie Dictionary Online (Macmillan Publishers Australia, 2022) Tarrant, Amending Final Judgments and Orders (The Federation Press, 2010) |
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Division: |
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Registry: |
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National Practice Area: |
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Sub-area: |
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Number of paragraphs: |
144 |
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Date of hearing: |
23 May 2022 |
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Counsel for the Applicant: |
Mr P Fary SC with Ms V Bell |
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Solicitor for the Applicant: |
NOH Legal Pty Ltd |
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Counsel for the Respondent: |
Mr T Bevan |
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Solicitor for the Respondent: |
Kennedy Guy Solicitors |
ORDERS
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VID 682 of 2021 |
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BETWEEN: |
VICTOR HRYCENKO Applicant
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AND: |
GEORGE HRYCENKO (BY HIS LEGAL REPRESENTATIVE NICHOLAS HYCENKO) Respondent
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order made by: |
BROMBERG, MOSHINSKY AND MCELWAINE JJ |
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DATE OF ORDER: |
9 September 2022 |
THE COURT ORDERS THAT:
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Leave is granted to the appellant to rely upon ground 1 of the amended notice of appeal which ground was not raised in the proceeding before the Federal Circuit Court of Australia.
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The appellant has leave to rely on further evidence on the appeal, being the evidence that the Federal Circuit Court of Australia did not at any time before the expiration of the period of 12 months commencing on the date of presentation of the creditor’s petition make any order under s 52(5) of the Bankruptcy Act 1966 (Cth) extending the period for expiration of the petition.
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The appeal is allowed.
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The sequestration order made on 28 October 2021 in the Federal Circuit Court of Australia in the estate of Victor Hrycenko is set aside.
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Order 1 of the orders made on 14 January 2022 in the Federal Circuit and Family Court of Australia, amending the orders made 14 May 2021 nunc pro tunc, is set aside.
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The proceeding is adjourned for further submissions in writing or for hearing if necessary all consequential orders, including costs.
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The Registrar is directed to provide a copy of these reasons to Mr Michael David Badge, who may be heard before the making of further orders.
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The parties, and Mr Michael David Badge (should he wish to be heard) are to in the first place provide short written submissions, not to exceed 3 pages, on the question of consequential orders and costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
The essential facts giving rise to this appeal are very helpfully summarised in the reasons for judgment of Moshinsky J. I gratefully adopt, without here repeating, his Honour’s summary. I have also had the substantial advantage of reading, in draft, the reasons for judgment...
