FEDERAL COURT OF AUSTRALIA

Low v Barnet (Trustee); In the Matter of Mathai [2014] FCA 728

IN THE MATTER OF THE BANKRUPT ESTATE OF MATHEW KERALAVAKAYIL MATHAI

THE COURT ORDERS THAT:

1.    Pursuant to r 2.04 of the Federal Court (Bankruptcy) Rules 2005 and subject to any order revoking such leave, Mathew Keralavakayil Mathai have leave to be heard in this proceeding upon condition that:

(a)    He be represented by a suitably qualified lawyer;

(b)    By 28 July 2014, he provide security for any adverse costs orders that may be made against him, such security to be in the total amount of $100,000 being $50,000 on account of the costs of the applicant and $50,000 on account of the costs of the respondent and to be paid in cash to the NSW District Registrar;

(c)    The said Mathew Keralavakayil Mathai be responsible for his own costs of and incidental to his intervention herein to the intent that it shall not be open to him to seek an order for costs against either the applicant or the respondent no matter what the outcome of the present proceeding may be;

(d)    Subject to any further or other order of the Court, the intervention by the said Mathew Keralavakayil Mathai be limited to:

(i)    The filing and service of a Written Submission of no more than ten (10) pages in length which Submission shall be filed after and in light of the Written Submissions of the applicant and of the respondent and shall be confined to such relevant matters as are not addressed at all in the respondent’s submissions or which, in the reasonable opinion of Mr Mathai’s legal representatives, have not been addressed adequately; and

(ii)    Appearing at the hearing represented by a suitably qualified lawyer.

2.    The Amended Interim Application filed by the said Mathew Keralavakayil Mathai and his son, Michael Lee Mathai, otherwise be dismissed.

3.    The taxed costs of both the applicant and the respondent of and incidental to the said Interim Application be paid out of the estate of the said Mathew Keralavakayil Mathai.

4.    The proceeding be listed for directions at 9.30 am on 29 July 2014 before Foster J.

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

REASONS FOR JUDGMENT

1        The applicant, Low Mooi Kwee (also known as Monica Low), is a substantial, and almost certainly the only, creditor of the former bankrupt, Mathew Keralavakayil Mathai (the bankrupt) who was made bankrupt upon the application of Ms Low on 18 May 2004 and who was discharged from that bankruptcy on 21 April 2008.

2        By her initiating Application filed in this proceeding, Ms Low seeks the following relief:

A.    FINAL ORDERS SOUGHT BY THE APPLICANT

On the grounds stated in the supporting affidavit, the applicant seeks the following orders:

1.    An order pursuant to section 109(10) of the Bankruptcy Act 1966 (Cth) (the Act) that after payment of the amounts payable under section 109(1)(a) and section 82 of the Act, the Respondent distribute to the Applicant the whole amount of all property and expenses recovered or realised by the Respondent in the administration of the Bankrupt Estate of Mathew Keralavakayil Mathai.

2.    In the alternative to order 1 above, that, pursuant to section 109(10) of the Act, the Respondent distribute to the Applicant such proportion of the property and expenses recovered or realised by the Respondent in the administration of the Bankrupt Estate of Mathew Keralavakayil Mathai that the Court considers just and equitable.

3.    The applicant’s costs of and incidental to this application be paid from the Bankrupt’s Estate in the priority fixed by section 109(1)(a) of the Act.

4.    Such further or other orders as the Court sees fit.

3        By an Amended Interim Application filed on 30 April 2014, the bankrupt and his son, Michael Mathai, seek leave to be heard in this proceeding. That application is made pursuant to r 2.04(1) of the Federal Court (Bankruptcy) Rules 2005 (the Rules).

4        By these Reasons for Judgment, I determine that Amended Interim Application.

THE RELEVANT FACTS

5        In 1993, Ms Low commenced proceedings against the bankrupt in the High Court of Justice of England and Wales, Chancery Division (Ch 1997 K 3097) in which she claimed from the bankrupt three holdings of United Kingdom Treasury stocks that she claimed belonged to her. In those proceedings, Ms Low claimed that the bankrupt had fraudulently obtained control of those stocks by forging a document which purported to transfer the stocks to him.

6        On 12 October 1998, the Court gave judgment in favour of Ms Low against the bankrupt. The trial judge found that the bankrupt had forged the signatures of Ms Low and another person on the document purporting to transfer the stocks. The Court made an appropriate declaration and ordered the bankrupt to pay to Ms Low GBP179,575.24 plus interest and costs.

7        On 12 February 2003, the Supreme Court of Victoria registered the judgment of the English High Court and the Default Costs Order made by that Court under s 6 of the Foreign Judgments Act 1991 (Cth). The net amount in respect of which judgment was entered was GBP118,317.11. The Supreme Court also ordered that the bankrupt pay Ms Low’s costs of the registration of the English judgment.

8        On 14 June 2003, the bankrupt was validly served with notice of the foreign judgment registration and a demand for payment at his home at 69 Wellington Street, Kew, VIC (69 Wellington Street).

9        On 3 July 2003, on the application of Ms Low, the Official Receiver issued a Bankruptcy Notice against the bankrupt. The amount specified in the Bankruptcy Notice was $288,086.46. That amount was the Australian dollar equivalent of GBP118,317.11 as at 3 July 2003.

10        The bankrupt spent most of the second half of 2003 overseas.

11        On 6 December 2003, the Bankruptcy Notice was validly served on the bankrupt in Australia.

12        The bankrupt did not comply with the Bankruptcy Notice.

13        On 2 January 2004, Ms Low filed a Creditor’s Petition in this Court seeking a sequestration order against the estate of the bankrupt.

14        On 18 May 2004, a Registrar made a sequestration order against the estate of the bankrupt.

15        On 19 April 2005, the bankrupt applied for an annulment of his bankruptcy pursuant to s 153B of the Bankruptcy Act 1966 (Cth) (the Act).

16        The bankrupt subsequently also sought review of the Registrar’s decision to make a sequestration order.

17        On 19 July 2005, Graham J dismissed the bankrupt’s annulment application and his application for review (Mathai v Kwee [2005] FCA 932).

18        On 21 June 2007, the then Trustee of the bankrupt’s estate applied in the Federal Magistrates Court of Australia (as it was then known) for relief under s 121 of the Act against the bankrupt and against the registered proprietors of 68A Wellington Street, Kew, VIC (68A Wellington Street) which was then in the name of the bankrupt’s wife, Mrs Margaret Mathai, his brother-in-law Mr Wee Eng Poh and Mr Brian Selby Gill, and 69 Wellington Street, which was in the name of his son, Mr Michael Mathai. The Trustee claimed that the bankrupt had transferred both of these properties at times when he was, or was about to become, insolvent, in order either to prevent the properties from being recovered by his creditors, or to obstruct, or to delay his creditors.

19        Ms Low subsequently indemnified the Trustee in respect of the s 121 proceedings. The bankrupt and his wife were subsequently examined under the Act.

20        On 21 April 2008, the bankrupt was discharged from bankruptcy.

21        On 2 September 2011, the Federal Magistrate who heard the s 121 proceedings declared that the Trustee was entitled to the beneficial ownership of both properties, declared that the holders of the title to the properties held that title on trust for the Trustee and ordered those holders to transfer the legal title to the Trustee. The Federal Magistrate subsequently made an order for costs in favour of the Trustee against the respondent parties to the s 121 proceedings.

22        On 23 September 2011, the respondents to the s 121 proceedings filed a Notice of Appeal from the judgment of the Federal Magistrate.

23        On 21 December 2012, Tracey J dismissed the appeal from the Federal Magistrate’s decision (Mathai v Nelson (2012) 208 FCR 165).

24        On 17 January 2013, the respondent parties filed an Application for Special Leave to Appeal to the High Court of Australia from the orders made by Tracey J. On 26 June 2013, the High Court dismissed that Application and awarded costs to the Trustee.

25        The bankrupt has not paid any of the judgments ordered against him. Nor has he paid any of the costs ordered against him.

26        On or about 14 September 2013, 68A Wellington Street was sold at auction for $1,708,000. As at the date of these Reasons for Judgment, 69 Wellington Street has not been sold. Michael Mathai, who holds the title of 69 Wellington Street in his name, has executed and provided a transfer of that property to a previous Trustee of the bankrupt’s estate. That property remains in the control of the Trustee of the bankrupt’s estate.

27        Ms Low’s claim in the present proceeding is currently quantified by her solicitor at $1,379,140.39. Ms Low has been paid $566,624 towards the total amount of her claims.

28        As I understand the present position, her present claim of $1,379,140.39 is the quantum of her claim as at the date of these Reasons for Judgment and that she has given credit for the total amount already paid to her viz $566,624.

29        As at the date of these Reasons for Judgment, there appear to be fees and expenses due to the current Trustee of the bankrupt’s estate. There are also amounts due to previous Trustees. The total of all of these amounts as at late May 2014 was of the order of $457,124.

30        In an affidavit sworn on 3 June 2014, Stephen Mullette, who is the solicitor representing Ms Low in the present proceeding, set out various concerns which Ms Low and he have in relation to the intervention application filed by the bankrupt and his son. At pars 50 to 54 of that affidavit, Mr Mullette said:

50.    During this period of 1993 to date, Mathai avoided personal service and embarked on multiple unsuccessful interlocutory applications and appeals.

51.    I believe these matters give rise to a justified concern that if Mathai is joined or heard in these proceedings he will cause further unnecessary expense and delay to Monica, may seek to re-litigate matters of evidence already decided in the section 121 Proceedings and will fail to pay any costs orders made against him.

52.    Given Mathai’s history of not meeting cost orders and his status as a discharged bankrupt, I believe that there is a justified concern that he is impecunious, and will have insufficient funds to pay any cost orders that may be awarded in favour of the Monica [sic] in these proceedings.

53.    From October 2002, Monica has incurred over $650,000 in legal costs, disbursements and other expenses associated with the bankruptcy proceedings, the section 121 Proceedings and the appeals from the section 121 Proceedings (see paragraph 180 of Philip’s Affidavit).

Mathai is currently living overseas

54.     Having reviewed Philip’s affidavit, I believe that Mathew Mathai renounced his Australian citizenship in about October 2007 in favour of his Malaysian citizenship (see pages 231 236 of PL-1). I note that the Notice of Appearance that Mathew Mathai has filed in these proceedings indicates that he resides in Malaysia.

THE PARTIES’ SUBMISSIONS

The Mathais’ Submissions

31        Counsel for the bankrupt and his son, Michael Mathai, made the following submissions in support of the application that his clients have leave to be heard in this proceeding:

(a)    Ms Low is the only known creditor of the bankrupt’s estate.

(b)    The respondent in this proceeding, Ms Barnet, is the sixth trustee appointed to that estate, having been appointed on 3 September 2013.

(c)    The application is made under r 2.04 of the Rules. That rule gives to the Court a wide and unfettered discretion to allow intervention by interested persons.

(d)    The relevant guiding principle is that which was explained by the High Court in Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37 at 38–39 [2]–[3] and [6] as follows:

In determining whether to allow a non-party intervention the following considerations, reflected in the observations of Brennan CJ in Levy v Victoria ((1997) 189 CLR 579 at 600–605), are relevant. A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra-curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.

Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.

…

In considering whether any applicant should have leave to intervene in order to make submissions or to make submissions as amicus curiae, it is necessary to consider not only whether some legal interests of the applicant may be indirectly affected but also, and in this case critically, whether the applicant will make submissions which the Court should have to assist it to reach a correct determination. Ordinarily then, in cases like the present where the parties are large organisations represented by experienced lawyers, applications for leave to intervene or to make submissions as amicus curiae should seldom be necessary or appropriate and if such applications are made it would ordinarily be expected that the applicant will identify with some particularity what it is that the applicant seeks to add to the arguments that the parties will advance.

(e)    Here, both the bankrupt and his son have a direct interest in the outcome of this proceeding because they will both have an interest in any surplus in the bankrupt’s estate and in 69 Wellington Street. Whether those interests have any value will depend upon the outcome of Ms Low’s claims under s 109 of the Act. The bankrupt and his son are the only true contradictors to the claims made by Ms Low. The respondent Trustee has no direct interest to protect.

(f)    Grandsky Pty Ltd v Horne [2014] FCA 119 does not stand in the way of the present application. In that case, a creditor of the bankrupt estate made an application under s 109 of the Act for an order that the trustee pay to it the total amount held in the estate for distribution to creditors. Two other creditors opposed that application. Mr Van Oost, the bankrupt, sought leave to intervene to oppose the application upon the basis that he had an interest in ensuring that the estate was properly administered and that he did not accept that the claimant was a creditor. In Grandsky, Jagot J refused leave to Mr Van Oost to intervene. At [3] of her Reasons, her Honour said:

Mr Van Oost also sought to oppose the application, arguing that he had an interest in the proper administration of his bankrupt estate and did not accept that Grandsky was a creditor. However, s 109(1) concerns priority between creditors. Mr Van Oost is not a creditor of his bankrupt estate. The administration of the bankrupt estate is the responsibility of Mr Horne, the trustee. Mr Horne, the respondent to the application, provided three affidavits setting out the relevant material in respect of his administration of the estate. At the commencement of the hearing I heard from the parties about the involvement of Mr Van Oost and his application to adjourn the hearing on the ground that he had not been served with all of the relevant material by the applicant. I accepted Grandsky’s submission that Mr Van Oost had no standing to be heard on the application. Accordingly, I refused Mr Van Oost leave to take any further role in the hearing, other than as an observer, and refused to adjourn the hearing.

(g)    Grandsky is distinguishable from the present case because the interests which Mr Van Oost sought to protect did not justify his participation. Grandsky involved a competition between creditors. There was no surplus likely to be returned to the bankrupt.

(h)    Where a surplus is likely, the interests of both the bankrupt and his son are directly affected. The reasoning of Moore J in Green v Official Trustee in Bankruptcy [2003] FCA 214 supports the Mathais’ intervention application. At [4], his Honour said:

It is not clear to me what the husband’s interest was in this proceeding, at least in resisting the orders sought by the applicant. He also is liable under the Supreme Court costs order and one would have thought that it would be to his benefit for that order to be satisfied from the estate of his wife. However the bankrupt did have at least a theoretical interest because, if certain of the orders sought by the applicant had been made, her estate would be diminished by the satisfaction of the Supreme Court costs order, potentially diminishing any surplus which may ultimately enure to her when the administration of her estate is complete. However save for the possibility that the Supreme Court costs order might be set aside on appeal, she would remain liable to meet that costs order in any event.

(i)    In circumstances where there are funds available for distribution in the estate, the Trustee is required to pay out all of the debts of the estate and thereby to facilitate an annulment of the bankruptcy pursuant to s 153A of the Act. The effect of such an annulment is that the remainder of the property in the estate (if any) that is vested in the Trustee after payment of all debts, costs, charges and expenses of the administration reverts to the bankrupt (s 154(1)(c) of the Act). In the present case, the effect of the annulment may well be that 69 Wellington Street reverts to Michael Mathai. However, the trustee is presently unable to ascertain the total amount of the debts owed by the estate as that decision is dependent upon the outcome of the present proceeding.

(j)    It would be wrong in principle for the Court to require either the bankrupt or Michael Mathai to secure the other party’s costs in the event that an order for costs is ultimately made against them. They are not plaintiffs or applicants. They are not the moving parties for any relief.

Ms Low’s Submissions

32        Senior Counsel for Ms Low made the following submissions:

(a)    Neither the bankrupt nor his son, Michael Mathai, has any real interest in Ms Low’s application. Neither of them has a sufficient interest to support an order permitting them to intervene in that application. No proper attempt has been made by those persons to address the critical question of when and how any entitlement to any surplus might arise or to identify the nature of their interest in such surplus. The Mathais have failed to satisfy the common law test for standing or the tests under the applicable rules of Court which would justify an order permitting their intervention.

(b)    Grandsky stands in the way of the Mathais’ present application. Green is a decision of doubtful authority.

(c)    The evidence available to the Court at the moment does not support the proposition that all of the bankrupt’s debts will ultimately be paid in full thus triggering the operation of s 153A and s 154(1)(c) of the Act.

(d)    Michael Mathai clearly has no interest which could support an order allowing him to intervene. His current status as the registered proprietor of 69 Wellington Street is subject to the orders of the Federal Magistrates Court requiring him to transfer that property to the Trustee of the bankrupt’s estate.

(e)    In Roadshow Films Pty Ltd v iiNet Ltd, the High Court made clear that an indirect or contingent affectation of legal interests flowing from the extra curial operation of the principles enunciated in a decision of the Court or their effect upon future litigation would not ordinarily support an order for intervention. As neither the bankrupt nor Michael Mathai has any legal interests that will be directly affected by the outcome of Ms Low’s application, the Court ought not allow either of them to intervene.

(f)    The Mathais have not articulated with any particularity what it is that they seek to add to the evidence and arguments that will be advanced by the Trustee. It is incumbent upon them to persuade the Court that there is some real utility in their intervention. They have failed to do so.

(g)    The Court should not permit the Mathais to add to the costs of the present application especially in circumstances where, in the past, the bankrupt has repeatedly refused to meet his obligations both under judgments and orders for costs made by various courts.

(h)    There is no reason for the Court to think that the Trustee will not take a proper and adequate role as contradictor to Ms Low’s application.

The Trustee’s Submissions

33        The Trustee adopted a neutral position in relation to the Mathais’ application to intervene.

34        However, at the hearing before me, Counsel for the Trustee submitted that his client was justifiably concerned about her ability to play an active and effective role as contradictor where the costs of doing so might ultimately be under the control of Ms Low. In addition, Counsel drew my attention to the fact that the Trustee’s indications as to the likely quantum of the debts of the estate do not take into account the costs that will be incurred in defending the present proceeding.

CONSIDERATION

35        I am not persuaded that Michael Mathai, the son of the bankrupt, has any real interest in the outcome of Ms Low’s application. As the sole registered proprietor of 69 Wellington Street, Michael Mathai was obliged to transfer that property to his father’s Trustee in bankruptcy. As I understand the present state of affairs in relation to that matter, Michael Mathai has executed such a transfer and delivered it to his father’s Trustee. However, the transfer has not yet been registered. Nonetheless, Michael Mathai has done all that he was required to do in order to effect that transfer.

36        It was submitted on behalf of the Mathais that Michael Mathai may have a beneficial interest of some kind in 69 Wellington Street. There is no evidence before me as to how such an interest might have arisen nor would the present proceeding be an appropriate forum for determining whether such an interest exists. As between Michael Mathai and the Trustee of his father’s bankrupt estate, Michael Mathai is required to disgorge 69 Wellington Street in favour of the Trustee. If, in due course, he wishes to agitate some claim against his father in respect of that property or the proceeds of sale of that property, he may do so.

37        For these reasons, I do not consider that Michael Mathai has any interest that would warrant an order in his favour allowing him to intervene in the present proceeding.

38        According to the figures presented to me in evidence in the present Application, remuneration and expenses currently due to the respondent and to former trustees of the bankrupt’s estate total $457,124. As submitted by Counsel for the Trustee, further remuneration and expenses will be due to her in respect of the current proceeding.

39        According to some evidence before me, the current value of Ms Low’s claim in the present proceeding is approximately $1,227,958, although the true figure may be up to $100,000 or so more than this.

40        It seems highly likely that, in due course, there will be a surplus in the bankrupt’s estate.

41        In the past, there has obviously been disputation between Ms Low and one or more of the Trustees of the bankrupt’s estate and between the bankrupt and one or more of the Trustees of his estate. I would be justified in thinking that, in defending the present proceeding, the Trustee will be in the difficult position of being required to defend a proceeding against the only creditor of the bankrupt’s estate in circumstances where both that creditor and the bankrupt himself ultimately may have real control over whether the Trustee is fairly remunerated for her efforts in defending this proceeding. Counsel who appeared for the respondent emphasised the difficulties confronting the respondent. He even foreshadowed that she may feel compelled to seek directions from the Court as to whether she would be justified in defending Ms Low’s application. This would only add to the costs of this proceeding and further diminish the bankrupt’s estate.

42        In addition, given that I think that there is very likely going to be a surplus in the bankrupt’s estate, the bankrupt has a real and substantial financial interest in seeing that the present proceeding is properly defended. That interest may go so far as being constituted by a legitimate and reasonable expectation that 69 Wellington Street may not have to be sold if Ms Low’s present Application fails.

43        The bankrupt has a real contingent legal interest which is directly affected by Ms Low’s claims in the present proceeding. That interest is the very real prospect that his bankruptcy will be annulled under s 153A of the Act with the consequence that the surplus assets in the hands of his Trustee will come back to him pursuant to s 154(1)(c) of the Act.

44        Green is some authority for the proposition that, in an appropriate case, a bankrupt in respect of whose estate a surplus is likely to be achieved has a sufficient interest to support intervention pursuant to r 2.04 of the Rules. I do not think that the reasoning of Jagot J in Grandsky stands in the way of the present Application. The facts in Grandsky were very different from the facts of the present case. All that her Honour decided in Grandsky was that the interest propounded by the bankrupt in that case as justifying intervention was not sufficient. I do not understand Jagot J to have held that a bankrupt could never be permitted to intervene in an application under s 109(10) of the Act. Rule 2.04(1) does not speak in terms of “standing”. Rather, it gives to the Court a discretion to allow intervention in an appropriate case.

45        In my judgment, the bankrupt has established a sufficient real and direct interest in the outcome of Ms Low’s Application to justify an order for intervention in his favour. However, given the history of the dealings between the bankrupt and Ms Low and Ms Low’s legitimate concerns that intervention by the bankrupt will unnecessarily prolong the trial of the present proceeding and unreasonably add to the costs thereof, the order for intervention should be made on terms that:

(a)    The bankrupt be represented by a suitably qualified lawyer;

(b)    The bankrupt provide security for any adverse costs order that might be made against him; and

(c)    At this stage, intervention be limited to an entitlement to make brief submissions both orally and in writing and not to adducing evidence. Any Written Submission should be filed and served after the other parties’ Written Submissions have been filed and served and should only address such relevant matters as the bankrupt wishes to submit in support of his opposition to Ms Low’s claims, being matters which have not been addressed by the Trustee at all or which, in the reasonable judgment of the bankrupt’s legal representatives, have not been addressed adequately.

46        I have been told that the trial of the present proceeding is likely to take up to two days. I consider that the bankrupt ought to secure Ms Low’s costs in the amount of $50,000 and the Trustee’s costs in the same amount. For this reason, the order permitting the bankrupt to intervene in the present proceeding will be on condition that, by no later than 28 July 2014, he put up security in the amount of $100,000, such security to be in the form of cash. I do not consider that there is any principle which prevents me from imposing such a condition upon the bankrupt’s intervention.

47        In addition, the bankrupt must be responsible for his own costs. He will have no entitlement to seek an order for costs against Ms Low or against the Trustee under any circumstances.

48        There will be orders accordingly.

Associate:

Dated:    4 July 2014