FEDERAL COURT OF AUSTRALIA

Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant be granted leave to apply for a lump sum costs order within 21 days of the date of this order.

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

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondents’ costs of the application.

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

REASONS FOR JUDGMENT

GLEESON J:

1    In these two proceedings, the applicant, Gurjit Singh, principally seeks orders setting aside two bankruptcy notices that have been issued against him, being:

(1)    BN246870 issued on 16 October 2019 (NSD1916/2019); and

(2)    BN247914 issued on 9 December 2019 (NSD96/2020).

2    The first bankruptcy notice identifies the creditor as Fobupu Pty Ltd (Fobupu). The amount claimed is based on judgments obtained by filing documents in the Local Court of New South Wales (Local Court) including a judgment in favour of Ghulam Akbar Khan, Samina Khan and Fobupu, the respondents in NSD96/2020, in the sum of $1,591.00 (first Local Court judgment).

3    The second bankruptcy notice identifies the creditors as the respondents. The amount claimed is $28,142.98, based on the first Local Court judgment and a judgment obtained by filing two certificates of determination of costs in the Local Court, in the sum of $26,551.98 (second Local Court judgment).

4    Mr Singh’s applications were heard on 5 May 2020 and were opposed by the respondents.

5    At the hearing, there was debate about whether Fobupu’s reliance on two bankruptcy notices claiming the same debt may be an abuse of process and, accordingly, whether Fobupu should make an election as to which bankruptcy notice the debtor is required to comply with: Abignano v Wenkart [1998] FCA 1468. Pursuant to an order made that day, Fobupu elected not to pursue BN246870. Accordingly, Mr Singh’s application in NSD1916/2019 is otiose and may be dismissed, although he has effectively succeeded in that proceeding. As Mr Singh is self-represented, it is unlikely that he has incurred any legal costs but he may have incurred some disbursements. I will grant leave to Mr Singh to make an order for costs in a lump sum. If Mr Singh makes such an application, Fobupu will have an opportunity to address the Court both on the question of whether Mr Singh is entitled to a costs order in his favour, and on the amount of any lump sum costs order.

6    Accordingly, these reasons deal with the application to set aside the second bankruptcy notice, that is, BN247914.

Background facts

7    It is not necessary to go into any detail concerning the history that led to the two Local Court judgments. Both are based on costs orders made by the New South Wales Civil and Administrative Tribunal (NCAT),

8    The first costs order, dated 24 September 2019, was that Mr Singh and a company named ACN 605 054 242 Pty Ltd pay the respondents costs fixed at $1,400 inclusive of GST, immediately. The order was made in NCAT file no. AP 19/28114. A certificate pursuant to s 78 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) dated 1 October 2019 to the effect that Mr Singh and another are to pay the respondents’ costs fixed in the sum of $1,400 inclusive of GST (s 78 certificate) was subsequently filed in the Local Court.

9    The second order was made on 25 May 2018 in unidentified NCAT Appeal Panel proceedings. On 30 September 2019, a costs assessor issued two certificates (September 2019 certificates) being a certificate of determination of costs in respect of the order, expressed to have been issued under s 70 and s 78 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Legal Profession Act 2014) in the amount of $24,453.85 and a certificate of determination of manager’s assessment of costs, expressed to have been issued under s 71 of the Legal Profession Act 2014. These certificates were also filed in the Local Court.

10    The disputes between the parties appear to have arisen out of Mr Singh’s tenancy of property owned by Fobupu at Kingswood, in the state of New South Wales. The disputes led to two proceedings in NCAT and two appeals to the Appeal Panel of NCAT: Singh v Fobupu Pty Ltd; Singh v Khan [2020] NSWCATAP 11 (a decision that post-dates the bankruptcy notice).

11    The Appeal Panel dismissed both appeals. The Appeal Panel decision refers to four separate retail lease applications made by Mr Singh to NCAT. The Appeal Panel judgment noted that an issue in all four applications concerned whether there was a retail lease with Mr Singh within the meaning of the Retail Leases Act 1994 (NSW).

12    The disputes have also led to proceedings in the Supreme Court of New South Wales. In July 2019, the Court of Appeal dismissed Mr Singh’s summons for leave to appeal from a decision of a single judge dismissing proceedings brought by Mr Singh arising out of a decision made in NCAT on 27 February 2019: Singh v Khan [2019] NSWCA 196.

13    The Appeal Panel decision also records (at [151]) an argument made by Mr Singh to the Supreme Court and the Court of Appeal to the effect that an order for possession made by NCAT in February 2019 was unlawful or inappropriate because there was an obligation on Fobupu to provide tax invoices; and because the tax invoices were not in the proper form and did not properly name the trust of which Fobupu, as legal owner of the property, was said to be the trustee. The judgment records that, on the basis of these tax invoices, Mr Singh was contending that there was no failure to pay rent.

14    The relevance of this other litigation is:

(1)    to demonstrate Mr Singh’s contention that the costs orders made against him have been made in the context of a set of disputes between him and the respondents. Mr Singh contends that this set of disputes has not been finally determined because he has brought proceedings in the Court of Appeal challenging some or all of the decisions made against him to date; and

(2)    to identify background to Mr Singh’s contentions under the heading “Respondent may not exist/may not be capable to make claim”.

Mr Singh’s case

15    Mr Singh argued that the bankruptcy notice should be set aside for reasons which may be summarised as follows:

(1)    the judgments on which the bankruptcy notice is based are not final judgments within the meaning of s 41 of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act);

(2)    Mr Singh has a set off or counterclaim within the meaning of s 40(1)(g) of the Bankruptcy Act equal to or exceeding the amount of the judgment debts, being a counter-claim or set-off that he could not have set up in the proceedings in which the judgments were obtained.

(3)    the NCAT decisions are under appeal;

(4)    there is an issue as to the identity of the creditor; and

(5)    the bankruptcy notice is defective.

16    Mr Singh identified the affidavits on which he sought to rely by the following dates: 28 January, 20 March and 21 April 2020. In his submissions, Mr Singh also relied on an affidavit sworn by him on 18 November 2019 and filed in NSD1916/2019.

Legal framework

17    Section 30(1) of the Bankruptcy Act provides:

30    General powers of Courts in bankruptcy

(1)    The Court:

(a)     has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b)    may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

18    In Re Briggs; Ex parte Briggs v Deputy Commission of Taxation (WA) [1986] FCA 512; (1986) 12 FCR 310 at 312, Toohey J explained relevantly:

... It seems to me that, however formulated, the grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice itself, service of the notice or the existence of the debt upon which the judgment and in turn the notice is founded. Having regard to the language of s 40(1)(g), reference to the existence of a debt must include the existence of a counter-claim, set-off or cross demand equal to or exceeding the amount of the debt.

A court hearing an application to set aside a bankruptcy notice is not hearing a petition for sequestration and the provisions of s 52(2), whereby a court may dismiss a petition if satisfied that the debtor is able to pay his debts or that for other sufficient cause a sequestration order ought not be made, cannot be imported into such an application. In my view a court faced with an application to set aside a bankruptcy notice is constrained to look only at the regularity of the notice itself (including service) and otherwise at the circumstances surrounding the existence of the judgment debt and any demand which the debtor may have against the creditor for a comparable amount.

19    In Xu v Wan Ze Property Development (Aust) Pty Ltd (in Liquidation) [2014] FCA 461; (2014) 315 ALR 523 (Xu) at [131], Robertson J stated:

Except in a clear case, questions of fraud, collusion, lack of good faith and miscarriage of justice, or whether substantial reasons have been shown for questioning whether behind the judgment there was in truth and reality a debt due to the judgment creditor, are more apt to be dealt with after the exhaustion of those remedies and where the Court is dealing with an application to make a sequestration order against the estate of the debtor. No doubt the circumstances in which the Court will go behind a judgment cannot be formulated precisely.

20    The correctness of those principles was recently accepted by the Full Court in Rafidi v Commonwealth Bank of Australia [2020] FCAFC 26 at [13] and [14].

Judgments relied upon are not “final” judgments

Mr Singh’s argument

First Local Court judgment

21    Mr Singh contended that the s 78 certificate was not obtained in a contested context, and was generated administratively and ex parte. Further, the Local Court process was administrative, without notice to him and ex parte.

22    Mr Singh acknowledged that he had made an unsuccessful application to the Local Court to set aside the first Local Court judgment as a “default judgment”, but relied upon this fact to argue that he has been denied an opportunity to make an effective challenge against the judgment, particularly by raising a defence, counterclaim or set-off. Mr Singh stated that he is proceeding to appeal the Local Court’s decision.

23    Mr Singh argued that the relevant New South Wales legislation does not authorise any step in a Federal jurisdiction or under the Bankruptcy Act.

24    Mr Singh referred to Calandra v Murden (No 2) [2015] NSWCA 321 at [4]. In that case, the Court of Appeal found that a judgment was entered “against good faith” and also entered “irregularly”, where there was no amount of unpaid costs in respect of which the party who obtained the judgment was entitled to judgment. The Court of Appeal found that the form should not have been filed and ought not to have been accepted, had it been disclosed at the time of its filing that there was no amount of unpaid costs due.

25    Mr Singh contended that this case is analogous because the respondents have sought to maintain a position where no effective challenge can be made against the judgment.

26    Mr Singh submitted that the respondents acted in bad faith by issuing the bankruptcy notice when they “well know there are issues pending and they do not address those issues and assert them as not being an obstruction, but rather skirt around them and hide from them, hoping to avoid them, generates an irregularity as expressed by the Court of Appeal”.

27    Mr Singh submitted that decisions of NCAT do not have the status of judgments, and certainly not “final judgments or final orders” within the meaning of the Bankruptcy Act.

28    Mr Singh submitted that the decision in Doyle v Chadwick [2007] NSWCA 159 demonstrates conclusively that there is no relevant final judgment or final order. At [49]-[51], Hodgson JA stated relevantly:

[49]    It is well recognised that there are judgments that are not based on any decision of the Court of which they are taken to be judgments, but have some other basis; and such judgments may be set aside or varied if that basis is defeated or varied.

…

[51]    Another example is judgments arising from the registration of a certificate of judgment from another jurisdiction. …

[52]    A judgment arising from a certificate pursuant to s.208J(3) of the 1987 Act is this kind of judgment; and is liable to be set aside or varied if the certificate on which it is based is set aside or varied: cf. Croker v. Commissioner of Taxation [2005] FCA 127, (2005) 145 FCR 150 at [14]. A further limitation of the effect of such a judgment is considered in Khoury v. Hiar [2006] NSWCA 47.

Second Local Court judgment

29    Mr Singh’s argument was substantially the same as for the first Local Court judgment.

30    However, Mr Singh noted that the second Local Court judgment was based on a cost assessor’s certification, obtained in a contested context “but only as to … quantum …”. Accordingly, the Local Court process was “administrative, without notice to the applicant and ex parte, the applicant. The applicant was not served with process regarding steps in that process, nor given any opportunity to have any input”.

31    Mr Singh identified the respondents’ bad faith in issuing the bankruptcy notice on the basis of the second Local Court judgment differently, saying that the respondents and their legal advisers “well know that the cost assessor certificate is not generated in an all issues trial situation”.

Consideration

32    Section 41 of the Bankruptcy Act provides relevantly:

(1)    An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:

…

(b)    2 or more final judgments or final orders that:

(i)    are of the kind described in paragraph 40(1)(g); and

(ii)    taken together are for an amount of at least the statutory minimum.

33    Paragraph 40(1)(g) of the Bankruptcy Act describes the following kind of final judgments or final orders:

a final judgment or final order, being a judgment or order the execution of which has not been stayed …

34    Section 40(3)(b) provides:

(3)    For the purposes of paragraph (1)(g):

…

(b)    a judgment or order that is enforceable as, or in the same manner as, a final judgment obtained in an action shall be deemed to be a final judgment so obtained and the proceedings in which, or in consequence of which, the judgment or order was obtained shall be deemed to be the action in which it was obtained;

35    The respondents relied on s 40(3)(b), Re Skinner’s and Smith's Application (1982) 45 ALR 553 and Westpac v Goodman [2010] FMCA 993 to contend that the judgments obtained in the Local Court were or were based on final orders. However, each of these cases concerned one or more costs orders made by a superior court, as opposed to a costs order made by a statutory tribunal (NCAT), followed by the filing of a s 78 certificate in the Local Court or followed by a costs certificate assessing costs and filed in the Local Court.

36    In Sarks v Cassegrain [2014] FCA 972 (Sarks), Flick J considered whether “judgment/orders entered after an assessment as to costs and a review process” were judgments for the purposes of s 40(1)(g). In that case, certificates were issued under s 368 of the Legal Profession Act 2004 and “the Supreme Court thereafter made and entered judgments/orders”. Subsequently, a request was made for a review of the determinations recorded in the certificates and a costs review panel issued certificates of determination affirming the original costs determinations. At [34] to [36], Flick J stated:

[34]    In commenting upon a predecessor provision to s 368, Giles JA in Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 observed:

[8]    ... under s 208KF(2) of the Legal Profession Act 1987 (since repealed, see now s 368(5) of the Legal Profession Act 2004) on the filing of the review panel’s certificate it was taken to be a judgment of the District Court. In truth, there was no District Court judgment. So-called judgments under s 208J(3) of the 1987 Act, which is relevantly replicated in s 208KF(2), have been considered in Doyle v Hall Chadwick [2007] NSWCA 159 at [47]–[54] and cases there mentioned, with recognition of their distinct nature, and while reference to them as judgments is convenient (and I will hereafter refer to the District Court judgment as such) they take their force from the statute and are not judgments of the court.

This decision is clearly the source of the Applicants’ present submission. But nothing said in that case touched upon whether a certificate of a determination as to costs that is “taken to be a judgment” may not constitute a “judgment” for the purposes of s 40(1)(g) of the Bankruptcy Act. Nothing said in that decision precludes a conclusion that something which is to be “taken to be a judgment” may not constitute a “judgment” for the purposes of s 40(1)(g).

[35]    Moreover, and notwithstanding the fact that each of the Bankruptcy Notices annexed as the “judgment/order” that which is to be “taken to be a judgment” of the Court by reason of s 368(5), each of the Bankruptcy Notices is ultimately founded upon the orders made by Bergin CJ in Eq on 16 May 2014. And those orders constituted “final orders” for the purposes of s 40(1)(g). The “judgment(s)/order(s)” attached to each of the Bankruptcy Notice were but the quantification of the amounts claimed in respect to those costs ordered to be paid by Bergin CJ in Eq. Whether or not such “judgments” had been entered as a “ministerial” process, each quantified the amount of monies payable pursuant to the “final orders” previously made.

[36]    Although not determinative of the matter, the contention advanced on behalf of the Applicants – if accepted – could well mean that many (if not all) bankruptcy notices would fail if founded upon “judgments” entered pursuant to provisions such as s 365 of the Legal Profession Act. Such a result would be surprising.

37    A “final judgment” within the meaning of the Bankruptcy Act at least includes a judgment upon which the creditor is in a position to issue execution: Abigroup Limited v Abignano (1992) 39 FCR 74 at 80.

38    A judgment is not any less final because it is subject to appeal: Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378 at 381.

First Local Court judgment

39    Section 78 of the NCAT Act provides relevantly:

(1)    Recovery of non-penalty amounts For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar.

(2)    A certificate given under this section must identify the person liable to pay the certified amount.

 (3)    A certificate of a registrar that--

   (a)    is given under subsection (1), and

(b)    is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, operates as such a judgment.

40    Mr Singh did not dispute that the registrar of NCAT has given a certificate under s 78, that this certificate was filed in the Local Court, and that the Local Court had jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate.

41    Thus, pursuant to s 78, once filed, the s 78 certificate operated as a judgment of the Local Court.

42    That judgment has not been stayed, although Mr Singh says that he has appealed from the entirety of the relevant decisions made by NCAT.

43    The order that was the subject of the s 78 certificate required immediate payment of the respondents’ costs fixed at $1,400 inclusive of GST.

44    In my view, as the s 78 certificate operates as a judgment of the Local Court, it is a judgment within the meaning of s 41 of the Bankruptcy Act. As the certificate is based upon an order that required immediate payment, I am satisfied that the s 78 certificate is also a final judgment within the meaning of s 41.

45    None of the submissions made by Mr Singh require or justify a different conclusion. In particular, Mr Singh has not identified any legal basis for an entitlement to challenge to the costs order prior to the filing of the s 78 certificate. As I have explained below, Mr Singh’s set-off/counter-claim has no prospects of success.

46    Nor do I accept that there is any bad faith on the part of the respondents in issuing the bankruptcy notice based on the first Local Court judgment because Mr Singh has not identified any unresolved issue that the respondents were required to address before the bankruptcy notice was issued.

Second Local Court judgment

47    Sections 70 and 71 of the Legal Profession Act 2014, pursuant to which the September 2019 certificates were apparently issued, provide relevantly:

70    Certificate as to determination of costs to parties

(1)    On making a determination of costs, a costs assessor is to issue a certificate that sets out the determination and includes--

(a)     the amount of costs determined (including any GST component the costs assessor determines is payable), and

(b)    the amount of any costs of the costs assessment determined under section 78 of this Act or section 204 of the Legal Profession Uniform Law (NSW) , and

(c)     any interest on those amounts--

(i)     determined under section 81 of this Act, or

(ii)     payable under section 101 of the Civil Procedure Act 2005 .

…

(5)     In the case of an amount of money specified in a certificate that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid money. The rate of any interest payable in respect of that amount of money is the rate of interest in the court in which the certificate is filed.

…

71    Certificate as to determination of costs of costs assessor and Manager, Costs Assessment

(1)    On making a determination of costs, a costs assessor is to separately determine-

(a)    the amount of the costs incurred by the costs assessor and the Manager, Costs Assessment, and

   (b)    the costs related to the remuneration of the costs assessor, and

(c)    by whom those costs are payable and the extent to which they are so payable.

(2)    On making a determination under this section, a costs assessor is to issue a certificate that sets out the determined costs.

(3)    The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court against the party to the assessment by whom the costs are payable in favour of--

(a)    a party to the assessment that has paid some or all of the amount to the Manager, Costs Assessment – for that amount, and

  (b)    the Manager, Costs Assessment – for any amount of unpaid money.

48    In Tu v Chang (No 2) [2016] FCA 1568, Bromwich J considered a bankruptcy notice based on a judgment of the Local Court based on a certificate of costs issued under the Legal Profession Act 2004 (NSW), which was replaced by the Legal Profession Act 2014. In that case, the certificate followed a costs order made in the District Court of New South Wales. At [6], his Honour stated that [“c]osts certificates, upon filing in a court having jurisdiction to order payment of that amount of money, are taken to be a judgment of that court for the amount of the unpaid costs of the claim and the unpaid costs of the costs assessment” by s 368(5) and s 369(7) of the Legal Profession Act 2004.

49    The position has not changed under s 70 and s 71 of the Legal Profession Act 2014.

50    Applying the reasoning set out above in relation to the s 78 certificate, the September 2019 certificates are each taken to be a judgment of the Local Court and is consequently a judgment within the meaning of s 41 of the Bankruptcy Act. As there is no apparent inhibition upon the execution of the judgment, I am satisfied that each of the September 2019 certificates is also a final judgment within the meaning of s 41.

51    Again, I do not accept that there is any bad faith on the part of the respondents in issuing the bankruptcy notice based on the second Local Court judgment because I am not satisfied that there is any issue pending that should have been addressed before the bankruptcy notice was issued.

Set-off/ counter-claim for $470,000 withholding tax paid in error

52    Mr Singh submitted that there is conclusive evidence that he has a set-off and counter-claim for $470,000 withholding tax paid in error to the respondents.

53    The argument is based on the proposition that Mr Singh paid rent to the respondents in cash; that Dr Khan was prepared to accept that cash; there is no evidence of any tax invoices for the cash payments made by Mr Singh and Dr Khan has not given any evidence on the topic.

54    Mr Singh identified the legal basis for the claim as Tax Ruling GSTR 2013/1, particularly para 23 and TR2002/9.

55    Paragraphs 21 and 23 of GSTR2013/1 state:

21.    A tax invoice must include information to establish the identity of the supplier; and the recipient where applicable. Information sufficient to identify the supplier or recipient includes, but is not limited to, the legal name of the entity or the registered business name.

…

23.    In the case where the supplier or the recipient is a trust, the identity of the trust must be clearly ascertainable from the document. Information sufficient to identify the trust includes, but is not limited to, a registered business name under which the trust’s enterprise is carried on. In some cases, the identity of the trust may be clearly ascertainable if the trustee’s name is included on the tax invoice. The Australian business number (ABN) issued to the trust must also be clearly ascertainable from the document.

56    TR2002/9 is entitled “Income tax: withholding from payments where recipient does not quote ABN”.

57    TR2002/9 refers to s 12-190(1) of Sch 1 to the Taxation Administration Act 1953 (Cth), which provides:

(1)    An entity (the payer) must withhold an amount from a payment it makes to another entity if:

(a)    the payment is for a * supply that the other entity has made, or proposes to make, to the payer in the course or furtherance of an * enterprise * carried on in Australia by the other entity; and

  (b)    none of the exceptions in this section applies.

58    TR2002/9 provides guidance as to whether an entity making a payment in respect of a supply is required to withhold an amount under s 12-190.

59    Mr Singh contends that, based on TR2002/9, he was required to retain 47% of the cash amounts paid by him to the respondents for rent.

60    However, even assuming all of the facts in Mr Singh’s favour as well as an obligation to retain 47% of all cash paid by him to the respondents, Mr Singh does not have a relevant claim because there is no basis for the contention that Mr Singh’s non-compliance with any withholding obligation creates a right pursuant to which Mr Singh can seek reimbursement from the respondents of the amount that was not withheld. Mr Singh did not identify any statutory or contractual right to any such reimbursement.

Costs orders are under appeal

61    Mr Singh stated that “the Supreme Court is now seized of appeals regarding the entirety of the conduct of NCAT”, which I assumed (in Mr Singh’s favour) includes the relevant costs orders and all other NCAT decisions adverse to Mr Singh.

62    I am not persuaded that this is a proper ground to set aside the bankruptcy notice. As I have noted, the fact of an appeal does not detract from the character of the relevant judgments as final judgments.

63    In any event, the evidence does not demonstrate facts concerning the relevant appeals that provide a basis to conclude that the bankruptcy notice ought to be set aside by reason of the appeals.

64    In Sarks, Flick J referred to the policy behind rules to the effect that costs orders made on an interlocutory application are not payable until the conclusion of the proceeding unless the Court otherwise orders. At [22], his Honour referred to the following statement by the Full Court in relation to former O 62 r 3 of the Federal Court Rules 1979 in Bailey v Beagle Management Pty Ltd [2001] FCA 60; (2001) 105 FCR 136 at 145:

The policy behind O 62 r 3 is that, in the ordinary course of litigation, costs awarded in interlocutory proceedings need not be paid until the conclusion of the proceeding when set-offs can be made in the light of the ultimate orders for costs. There is an access to justice aspect in this. Impecunious litigants who have a meritorious claim or defence should not be forced out of court because of inability to meet interlocutory costs orders.

65    The Full Court noted that “applications for leave to appeal in interlocutory matters of practice and procedure stand on a different footing” and that there is a strong public policy against the proliferation of such applications.

66    There is no evidence before the Court about the circumstances that gave rise to the 25 May 2018 costs order.

67    Further, the Court was not pointed to authority that the policy that applies to interlocutory applications has any relevant application where a party is exercising rights of appeal. There is no evidence about whether any application was made to stay the costs orders that led to the two Local Court judgments on the basis of the appeals, and no evidence about whether any such application might have any merit.

Identity of creditor

68    Mr Singh’s evidence was that he received tax invoices from Fobupu for the months of November 2017 to February 2018 which included an Australian Business Number that is not Fobupu’s business number. Mr Singh was told by Fobupu’s solicitor that the ABN was held by a trust. However, Mr Singh has not seen the trust deed. He contended that s 23C(1)(c) of the Conveyancing Act 1919 (NSW) requires that he be provided with a copy of the trust deed before he has any obligation to pay any money to this trust. This latter contention is not correct. Section 23C(1)(c) provides:

(1)    Subject to the provisions of this Act with respect to the creation of interests in land by parol—

…

(c)    a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person's will, or by the person's agent thereunto lawfully authorised in writing.

69    Mr Singh also stated:

This trust is enforcing these costs orders. Fobupu Pty Ltd cannot claim this debt as it has no ABN and does not trade. If Fobupu is the trustee of the trust, it may be able to enforce, although there are other issues, for example, whether the trust existed in 1995 when this land was purchased. In the absence of the trust deed, it is not possible to know whether the trust exists and whether Fobupu is the trustee.

70    The bankruptcy notice has been issued on the application of the three respondents. The absence of an ABN and the fact that Fobupu does not trade are not impediments to the bankruptcy notice. Further, whether or not Fobupu is the trustee of a trust is not material to the entitlement of the respondents to procure the issue of the bankruptcy notice, and there is nothing otherwise to indicate that the bankruptcy notice does not correctly identify the creditor in respect of the judgment debts referred to in the notice.

71    As the Court of Appeal explained in relation to Mr Singh’s obligation to pay rent in Singh v Khan [2019] NSWCA 196 at [25] and [26]:

[25]    The misconception that a trust is a separate legal entity is common but wrong. The rent was payable to Fobupu. Section 23C provides for requirements of writing when a person is dealing with or declaring a trust over interest in land. It in no way detracts from Fobupu’s entitlements as legal owner of the land to recover recent in respect of it.

[26]    It is true that for the purposes of taxation laws, trusts can be separately taxed, and it is true that a trust may be treated as a supplier for the purposes of the GST Act. But whether Fobupo is assessable to income tax payable on rent received in its own right or as a trustee, or whether it and not the trust is a supplier for the purposes of GST is irrelevant to the applicants’ obligation to pay the rent if it sought to retain the benefit of the injunction restraining Fobupo from taking possession. Nor is a tax invoice invalidated by a supplier’s refusal to proffer a trust deed.

72    In his submissions, Mr Singh stated:

The simple reality is that if the trust does not exist and the trust is the only entity entitled to the rent and other charges, there is no debt until a court order corrects the position. Equally, if Fobupu is not the trustee, the debt to Fobupu cannot exist. There are other considerations. This issue has been largely ignored in NCAT.

73    This statement repeats the misconception that a trust is a separate legal entity. But, in any event, it ignores the fact that the September 2019 certificates were issued in favour of the respondents.

Defect in bankruptcy notice

74    Mr Singh acknowledged that arithmetical mistakes in calculating amounts or detailing them are not fatal if they do not reduce the amount below the statutory minimum.

75    Mr Singh identified as the critical error, which cannot be corrected, “the missing ABN and its relationship to the trust”. This contention goes back to the argument that there is an issue as to who is entitled to issue the bankruptcy notice and whether Fobupu may issue it in its own capacity or in its capacity as trustee of a trust.

76    This point does not assist Mr Singh. On the evidence, the underlying costs orders were made in favour of the respondents. It does not matter whether those costs orders were made in Fobupu’s favour in any particular capacity: they were simply made in favour of Fobupu. It may be that Fobupu has some obligation as a trustee to deal with monies that he may recover pursuant to the costs orders, however, that is not relevant to the form of the bankruptcy notice.

Should the Court Go behind the judgments

77    Mr Singh noted that the Court has power to go behind a judgment that founds a bankruptcy notice. The principles that guide the exercise of that discretion are set out in Sayer-Jones v Juju Bean Investments Pty Ltd [2020] FCA 177 at [11].

78    Mr Singh has not demonstrated grounds for questioning the judgments upon which the bankruptcy notice is based. In particular, Mr Singh stated that he participated in the assessment process that led to the certificates that were second judgment.

79    In those circumstances, there is no reason to question the existence of the debts that are the subject of the relevant judgments.

Conclusion

80    The application to set aside bankruptcy notice BN247914 will be dismissed. Costs should follow the event.

Associate:

Dated:    25 June 2020