Federal Court of Australia

Singh v Khan [2023] FCA 76

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    Within 14 days, any party seeking an order as to costs shall file submissions of no more than three pages setting out the order sought and reasons why the order should be made, together with any affidavit confined to evidence relevant to the cost order sought.

3.    Within 14 days thereafter any submissions in reply of no more than three pages together with any affidavit confined to evidence strictly in reply.

4.    Subject to further order, any application for costs shall be determined on the papers.

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

REASONS FOR JUDGMENT

COLVIN J:

1    On 6 May 2021, a sequestration order was made in respect of the estate of Mr Gurjit Singh by a judge of what was then the Federal Circuit Court of Australia. Mr Singh brings an appeal against the making of that order. In the ordinary course, by reason of its subject matter, such an appeal would be determined with urgency. Indeed, the appeal in the present case was set down for an earlier hearing. However, matters raised by Mr Singh concerning the preparation of the appeal books and the possibility that there may be an application to amend the notice of appeal have led to earlier listing dates being vacated and, consequently, a considerable delay.

2    In the result, Mr Singh did not seek to amend the notice of appeal, though he was given an opportunity to bring an application to amend. The appeal proceeded on the basis that Mr Singh raised the grounds as articulated in his original appeal notice.

The creditors' petition

3    The sequestration order was made on the petition of Mr Ghulam Khan, Ms Samina Khan and Fobupu Pty Ltd. They are the respondents to the appeal. Their petition relied upon an alleged failure by Mr Singh to comply with a bankruptcy notice as the act of bankruptcy to support the petition. The bankruptcy notice on which the petition was based claimed the amount of $28,142.98 for legal costs being the total of two judgment amounts in the Local Court of New South Wales. The circumstances in which those judgments were issued are considered below.

4    Before the hearing of the petition, Mr Singh had challenged the validity of the bankruptcy notice upon which the petition was founded. The challenge to the notice was heard by Gleeson J on 5 May 2020 and dismissed on 25 June 2020: Singh v Fobupu Pty Ltd, in the matter of Singh [2020] FCA 886. An appeal by Mr Singh against that decision was dismissed: Singh v Fobupu Pty Ltd, in the matter of Singh [2021] FCAFC 14.

5    It is common ground that Mr Singh did not make any payment of the amount claimed in the bankruptcy notice. The failure to make payment was an act of bankruptcy.

The proceedings before the primary judge

6    Mr Singh's notice of grounds of opposition to the petition was expressed in very general and somewhat obscure terms. At the hearing before the primary judge, Mr Singh appeared on his own behalf. He presented affidavit evidence and made submissions. His own affidavit evidence included a long recital of dealings in respect of rent payable to the petitioning creditors for the lease of premises used to conduct a restaurant business and litigation about those lease arrangements. It referred to proceedings brought by Mr Singh in the Civil and Administrative Tribunal of New South Wales (also called NCAT) concerning the lease of the premises. Part of that evidence was referred to by Mr Singh in the present appeal. In particular, he referred to evidence to the following effect:

(1)    the proceedings in NCAT were before Senior Member Simon;

(2)    the Senior Member conducted a hearing at which certain decisions as to the conduct of the proceedings were made;

(3)    Mr Singh appealed those decisions within NCAT to an appeal panel; and

(4)    the appeal was unsuccessful and resulted in a cost order 'on the basis of which this petition is based'.

7    Mr Singh's affidavit evidence also described the filing of a costs assessment application and the making of a final determination by a cost assessor in respect of the cost order made by the appeal panel in an amount of $26,360.98. It explained what had occurred in relation to that assessment. The affidavit also deposed to the existence of a separate cost order of $14,000 made by NCAT. These two amounts plus filing fees comprise the total amount claimed in the bankruptcy notice.

8    The affidavit of Mr Singh also referred to the issuance of certificates as to the amounts of each of the two cost orders. In that regard, s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) provides that for the purposes of recovery of an amount ordered to be paid by the Tribunal (including costs) the amount is to be certified by a registrar. Further, s 78(3) provides that where such a certificate is filed in a court having jurisdiction to give judgment for a debt of the same amount, the certificate operates as such a judgment.

9    Before the primary judge were judgments of the Local Court of New South Wales totalling the amount claimed in the bankruptcy notice, each described as being issued in the 'Certificates' List of that Court.

10    Therefore, before the primary judge, it was demonstrated that the judgment of the Local Court referred to in the bankruptcy notice had been obtained based upon certificates of cost assessment. The legislation provided for recovery of the certified amounts as a judgment because they had been filed in the Local Court. There was no suggestion that any payment had been made by Mr Singh.

11    In the course of oral submissions before the primary judge, Mr Singh raised the following matters which assume significance for the purposes of the appeal:

(1)    He sought to cross-examine Mr Khan as the deponent to the affidavit of debt presented in support of the petition (Affidavit of Debt).

(2)    He claimed to be entitled to a set off on the basis that he had paid in excess of a million dollars in rent to the petitioning creditor (over many years) without any tax invoices being issued.

(3)    He claimed that the judgments relied upon in the bankruptcy notice were obtained without any involvement on his part, in particular he said that he did not have any opportunity to participate in the process by which the costs were assessed and did not receive reasons for the assessment.

(4)    He claimed to have filed an application to review the assessment by the cost assessor and contended that s 86 of the 'Legal Profession Act' operated to suspend the determination of the assessment.

(5)    He alleged that there had been improper conduct by lawyers acting for the petitioning creditors in the course of proceedings in the Supreme Court in which he had sought to challenge the assessment.

(6)    He claimed that Fobupu Pty Ltd is a trustee of a trust and, as such, was not named properly as a party to the petition.

12    Other points made to the primary judge, including a claim that the judgment amount was not correct, were not the subject of submissions in the appeal.

The reasons of the primary judge

13    The primary judge made the sequestration order sought. Brief ex tempore reasons were delivered by the primary judge. They included the following:

The respondent first endeavoured to suggest that the debt was not currently due and owing because of s 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) ('the LPUL Application Act'). It is apparent that that provision is dependent upon steps being taken in accordance with the time period identified in ss 83 and 84 of the LPUL Application Act. The section has no application and it does not support the contention that the judgment debt is not still currently owing.

The respondent asked the Court to go behind the judgment, referring to the circumstances in which the judgement relating to outstanding rent was obtained. Nothing said by the respondent identified any proper basis to go behind the judgment the subject of the bankruptcy notice in respect of these proceedings.

The respondent also contended that he had been deprived of his rights to pursue an appellant challenge to the judgment debt because of alleged deceit by the petitioning creditor. There is no evidence to support those contentions. Nothing said by the respondent identified any proper basis as to why this Court should go behind the judgment debt.

It is apparent that the respondent also seeks to have the matter adjourned, pending an application for special leave concerning a decision of the Federal Court of Australia refusing to set aside the bankruptcy notice. That decision of the learned Gleeson J was upheld by the Full Court of the Federal Court on 3 February 2021. The Court is not persuaded that there is any prospect that the applicant's application for special leave will succeed and considers the application hopeless, and does not identify any proper basis as to why the proceedings should be adjourned. The Court, taking into account the powers of adjournment, including s 33 of the Act, is not satisfied an adjournment is warranted in the interests of the administration of justice.

Nothing else said by the respondent identified any other sufficient cause why a sequestration order ought not to be made.

(footnote omitted)

14    Although reasons were given at the time, it appears that they were not settled and published until 8 July 2021, well after Mr Singh commenced his appeal.

Reasons of Gleeson J concerning the bankruptcy notice

15    The reasons of Gleeson J concerning the unsuccessful application by Mr Singh to set aside the bankruptcy (that were referred to by the primary judge in his reasons) identified a number of 'Background Facts', including the following:

(1)    The disputes between the parties appear to have arisen out of Mr Singh's tenancy of property owned by Fobupu. The disputes led to two proceedings in NCAT and two appeals to the Appeal Panel of NCAT. In NCAT Mr Singh claimed that there was a retail lease of the property within the meaning of the Retail Leases Act 1994 (NSW) (at [10]-[11]).

(2)    Mr Singh had advanced an argument in proceedings in the Supreme Court of New South Wales 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' (at [13]).

16    In dealing with the contentions advanced by Mr Singh as to why the bankruptcy notice should be set aside, her Honour noted (at [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.

17    Her Honour found that the costs orders the subject of the two certificates on which the Local Court judgment was founded required immediate payment and that the certificates operated as final judgments (at [44]).

18    As to the claim of an alleged set off based upon withholding tax said to have been paid in error by Mr Singh, her Honour described the argument as being 'based on the proposition that Mr Singh paid rent to the respondents in 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' (at [53]). Her Honour explained that, in those circumstances, Mr Singh maintained that he was required to retain 47% of the cash amounts and, under the relevant provisions of the Taxation Administration Act 1953 (Cth), he had an obligation to remit that amount. It was not said that he had done so. Rather, he simply claimed that those circumstances meant he was entitled to a reimbursement from the respondents and that was the basis upon which he asserted a setoff. The contention was rejected by Gleeson J at [60].

19    As to a claim that Fobupu should be identified as the trustee of a trust, Gleeson J found that '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' (at [70]).

Grounds of appeal

20    The 10 grounds of appeal advanced by Mr Singh are expressed in the following terms:

1.    Judge exercised discretion arbitrarily, capriciously or according to private opinion to refuse cross-examination of Ghulam Akbar Khan in relation to the affidavit of debt. Reasons provided by the Judge reflects the conclusion that deponent has immunity from cross examination once the Affidavit is tendered and read in court.

2.    Judge exercised discretion arbitrarily, capriciously or according to private opinion to refuse to go behind the Judgement.

3.    Judge erred in granting leave to the applicants to amend the Creditor's Petition in respect of the date of the act of bankruptcy, being 25 June 2020 by accepting evidence from bar table from Mr Ryan Brown.

4.    Judge erred in making sequestration order in the circumstances when petitioner affidavit verifying the date of the act of bankruptcy being 5 May 2020.

5.    Judge applied the wrong test when leave is refused for application under rule Federal Circuit Court Rules 2001 - Rule 13.03 And Rule 17.03

6.    Judge erred in making costs order in favor of Trust which does not exist.

7.    Judge erred in excluding 'Amended Notice of Opposition' from consideration while deciding the petition to make sequestration order.

8.    His Honour erred in law by concluding that Sect 86 Legal Profession Uniform Law Application Act 2014 has no effect on alleged debt in petition which is based on costs assessor determination in circumstances where operation of the costs assessor's determination is suspended.

9.    Court capable of exercising federal judicial power must be, and must appear to be, an independent and impartial tribunal, However the conduct of Court of Judge Street is

a.    Not Independent

b.    Not Impartial

c.    Not appeared to be independent

d.    Not appeared to be Impartial

e.    Appeared to be a representative of creditor petitioner

10.    Judge Street provided no written reason till 23 May 2021 amounts to Justice delayed is Justice Denied in circumstances when respondents have benefit of the orders and appellant has to file this appeal without written reasons.

Submissions by Mr Singh

21    Mr Singh filed written submissions in the appeal. They were not arranged by reference to the grounds. Contentions to the following effect were advanced by those submissions:

(1)    the primary judge refused to exercise his judicial power to allow cross-examination of the deponent to the Affidavit of Debt;

(2)    a court exercising bankruptcy jurisdiction may go behind a judgment relied upon to support a creditor's petition;

(3)    NCAT lacked jurisdiction to issue a costs order unless there were exceptional circumstances;

(4)    the primary judge failed to exercise the jurisdiction to go behind the Local Court judgment the subject of the bankruptcy notice;

(5)    false statements were made by the Senior Member and that Mr Khan had made a false statement to NCAT;

(6)    there were proceedings in the Supreme Court of New South Wales in which Mr Singh has sought to challenge the costs assessment;

(7)    the reasons of the primary judge do not record the tender of affidavits by Mr Singh;

(8)    section 86 of the Legal Profession Uniform Law Application Act 2014 (NSW) applies to suspend the operation of the determination of costs;

(9)    the primary judge erred in refusing leave to Mr Singh to file an interlocutory application to heard at the time of the petition;

(10)    entirely unfounded claims that the primary judge was subjected to some form of pressure by Mr Khan (noting that Mr Singh himself stated that 'I do not have any evidence of wrongdoing');

(11)    a complaint that Senior Member Simon said that he did not have three interlocutory applications before him when the registry later confirmed that they were listed; and

(12)    No evidence was provided of the identity of Fobupu as a trustee and that the creditors' petition was required to describe Fobupu as acting as a trustee.

22    In oral submissions, Mr Singh relied upon the following matters as reasons why the primary judge was in error in failing to exercise the discretion to go behind the Local Court judgment:

(1)    the primary judge described the judgment the subject of the bankruptcy notice as 'relating to outstanding rent' when that was not correct;

(2)    at the time of the costs orders and the certificates, matters in NCAT had not been finalised and the costs orders could not be due and payable until there was finalisation of those matters;

(3)    he had been denied the right to cross-examine the deponent to the Affidavit of Debt;

(4)    Fobupu was required to be identified as a trustee;

(5)    the primary judge did not exercise his judicial power because he thought the underlying debt was about rent (which was not correct), he refused cross-examination and he gave no real reasons;

(6)    there was a set-off of the kind that had been put to Gleeson J;

(7)    Mr Singh had not been afforded an opportunity to participate in the assessment of costs pursuant to the costs order and had never seen the costs certificate; and

(8)    Senior Member Simon was in error in saying that the three interlocutory applications were not before her at the hearing that was the subject of Mr Singh's unsuccessful appeal that resulted in a cost order.

The grounds advanced by Mr Singh

23    Taking account of the grounds, the written submissions and the oral submissions, the main contentions being advanced by Mr Singh as grounds of appeal appear to be as follows:

(1)    the primary judge erred in refusing to allow Mr Singh to cross-examine the deponent to the Affidavit of Debt;

(2)    the primary judge erred in refusing to hear Mr Singh's interlocutory application;

(3)    the primary judge, in substance, failed to discharge his judicial function;

(4)    the reasons given by the primary judge were inadequate;

(5)    the primary judge erred in giving leave to amend the date of the act of bankruptcy in the creditors' petition;

(6)    the primary judge erred in making the sequestration order because the evidence was that the date of bankruptcy was 5 May 2020;

(7)    the primary judge erred in making the sequestration order when Fobupu did not petition as trustee for a trust;

(8)    the primary judge erred in failing to go behind the judgment and concluding that s 86 of the Legal Profession Uniform Law Application Act did not suspend the operation of the cost assessor's determination;

(9)    the primary judge erred in failing to go behind the judgment and concluding that there was a setoff of the kind put to Gleeson J;

(10)    the primary judge erred in failing to go behind the judgment and concluding that there was some issue with the way the costs had been assessed in circumstances where there was not a contested hearing concerning the assessment of the costs in which Mr Singh was allowed to participate;

(11)    there was some significance to the three interlocutory applications that had been before Senior Member Simon;

(12)    there was some significance to be given to the fact that NCAT could only make cost orders in exceptional circumstances; and

(13)    the primary judge failed to provide written reasons until after the appeal was commenced.

24    I do not include in this list the various allegations about apprehended bias, partiality and lack of independence on the part of the primary judge, members of NCAT or other judges because there was no evidentiary basis for any such claim and no logical explanation for the general assertions advanced. It is well established that allegations of apprehended bias are 'serious matters which must be properly pleaded and substantiated': Quach v MLC Limited [2022] FCAFC 202 at [95] (Collier, Perry and Thomas JJ). Further, an assertion of apprehended bias is not to be reached lightly: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [56] (Nettle and Gordon JJ).

25    I also do not include in the list the bald claims that false statements have been made by lawyers acting on Mr Khan's behalf in other proceedings concerning the cost assessment. They also lacked any proper evidentiary foundation. Finally, I do not include in the list complaints raised in the appeal as to statements allegedly made by Mr Khan in NCAT. These are new allegations not apparent from the submissions advanced to the primary judge. Their nature and significance is not entirely clear and there was no evident connection between the alleged false statements and the cost order that resulted in the assessment that came to be the subject of the Local Court judgment. In all those circumstances, they are not arguable and need not be considered.

The need to demonstrate error by the primary judge

26    In a number of respects, Mr Singh's submissions were unconstrained by what occurred before the primary judge. They tended to treat the appeal as an opportunity to present whatever contentions Mr Singh might now seek to advance as reasons why the sequestration order should not be made. Of course, that is not the correct approach. The appeal in the present case is conducted by way of a rehearing in which the appellant must articulate and demonstrate error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424; and Norbis v Norbis (1986) 161 CLR 513 at 519. To the extent that Mr Singh now seeks to advance contentions that were not put to the primary judge it is necessary for leave to be obtained to do so. Leave will only be given in limited circumstances: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48].

27    Nevertheless, I have approached the matter on the basis that I will seek to address the various points raised (as listed above) and I have assumed that there was an application for leave to the extent that a point was not advanced before the primary judge.

Outcome

28    For the following reasons, each of the points advanced by Mr Singh must be rejected and the appeal dismissed with costs.

(1) Refusal to allow cross-examination

29    On two occasions in the course of the hearing before the primary judge, Mr Singh indicated that he wished to cross-examine Mr Khan, the deponent of the Affidavit of Debt. On both occasions the primary judge simply refused the request without reasons. On the first occasion his Honour said:

Well, no. Just to be clear, I have now admitted the affidavits into evidence. I don't propose to allow cross-examination and so you're now being heard on whether a sequestration order ought to be made. That's what I directed your attention to. Now, please continue.

30    I do not interpret his Honour's statement to mean that the fact that the affidavits had been admitted was the reason why cross-examination was not allowed. But rather that his Honour had formed the view that cross-examination was not appropriate in the circumstances. The difficulty is that no explanation was given for that view.

31    On the second occasion, when Mr Singh said 'I intend to cross-examine them [the respondents]', the primary judge said:

Mr Singh, I have already told you that's not happening.

32    It appears that the primary judge formed the view that no purpose would be served by cross-examination. It would have been preferable if that position had been explained to Mr Singh as a person appearing on his own behalf. However, the peremptory refusal of the application to cross-examine without any stated reasons means that it is not possible to discern the basis upon which Mr Singh was not allowed to cross-examine.

33    In judicial proceedings, the parties are entitled to natural justice; that is they are entitled to a fair procedural opportunity to present their case. That includes an opportunity to test evidence by way of cross examination where there is a legitimate forensic purpose in doing so. If natural justice is not afforded then an appellate court will remedy that error, usually by ordering a new trial. However, that position is subject to an important qualification, namely 'an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial': Stead v State Government Insurance Commission (1986) 161 CLR 141 at [9], see also Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236 at [39]. So, an appellant alleging a failure to afford natural justice must negate futility. In the present case, in order to succeed on the appeal, Mr Singh must demonstrate some forensic purpose would have been served by the proposed cross-examination the result of which may have affected the outcome of the petition.

34    The difficulty for Mr Singh is that he failed to articulate any such purpose. When asked why he wanted to cross-examine Mr Khan as the deponent to the Affidavit of Debt, Mr Singh said:

Your Honour, I think what I was going to ask is - are questions about the competency of the person giving that evidence. Because the fact that debt is due, that evidence can only be given by a person competent who knows about that it's due. And my cross-examination will actually going - was actually going to reveal that Dr Khan is simply relying on basic understanding of his, you know - for example, you know, like, we made this point about costs payable. Had this cross-examination happened, that argument would have dealt in the lower court about the costs payable because I was going to ask a question that, 'Is this debt payable? When was this payable? How do you know it's payable?'

I mean, it is - in hindsight, I mean, it is speculation right now what would his answer be, but I was expecting the answer that he doesn't know all this. He [might] simply [say], 'No, I haven't - it was assessed, ordered to be paid, and I haven't paid that.' But all these issues, if dealt in the lower court properly, would have led to an argument about debt due and payable. And then I lost that opportunity down there, and now because I am actually kind of on the unfair side of answering those questions without being debated down there. So that's my point, your Honour, in terms of this.

35    The Affidavit of Debt was brief. It said (omitting numbering):

I am a Director of the Applicant Creditor Fobupu Pty Ltd and authorised to make and swear this Affidavit on its behalf.

I am also one of the Applicant Creditors.

The Applicant Creditor Samina Khan is my wife.

The debt on which the Applicant Creditors rely in relation to my Application for a Sequestration Order remains owing as at the date of swearing this Affidavit in the total sum of $28,142.98.

36    As has been noted, before the primary judge, Mr Singh did not dispute the making of the cost orders, the issue of the certificates or the judgments of the Local Court. He made submissions to the effect that he was not given an opportunity to participate in the process by which the costs were assessed (noting that there was reference in his own affidavit material to certain objections that he had raised). However, he did not identify any deficiency in the assessment process itself or point to any reason why the amounts were not appropriate. In any event, it was not suggested that Mr Khan may have been able to give evidence as to those matters. In short, there is no suggestion that Mr Singh sought to impugn by way of cross-examination the matters stated in the Affidavit of Debt.

37    The matters to which Mr Singh referred in his explanation as to why he wanted to cross-examine did not identify any matter of fact that might have been raised with Mr Khan. Rather, it appears that what Mr Singh contemplated was putting to Mr Khan certain of the contentions that he advanced as to why there was no underlying liability. This would have involved Mr Singh putting to Mr Khan his arguments as to why the Court should exercise its discretion to go behind the judgment. It would not have involved adducing any evidence from him. It has not been shown that the merits of any of the arguments depended upon evidence that Mr Khan might have given in response to questions by way of cross-examine.

38    Therefore, it has not been demonstrated that any forensic purpose would have been served by the cross-examination. For those reasons, the ground concerning cross-examination does not demonstrate a basis upon which the appeal should be allowed.

(2) Refusal to allow Mr Singh's interlocutory application

39    Mr Singh sought to file and rely upon an 'application in a case' at the hearing of the petition. The application sought to raise a number of separate questions for decision. The questions appeared to be points that Mr Singh was able to raise at the hearing of the petition in any event. He also sought an adjournment 'for further directions'.

40    As to the application, the primary judge indicated to Mr Singh that the first matter he would consider was whether he was going to allow Mr Singh to file the application 'when we are here for a final hearing in respect of a sequestration order'. Mr Singh then explained that the application was sought to be made 'for the court to exercise its discretion under section 52 of the Bankruptcy Act and also to go behind the judgment of debt'. The primary judge explained that those matters had to be considered in any event on the hearing of the petition. Leave to file the application was refused.

41    Mr Singh has not advanced any reason as to why, in the above circumstances, there was error in the approach of the primary judge.

42    As to the request for an adjournment, it was sought on the basis that there was then pending an application for special leave to appeal the decision of the Full Court concerning Mr Singh's application to set aside the bankruptcy notice. The application was expressly considered and rejected by the primary judge in his Honour's reasons. No contention has been advanced that would impeach the correctness of that aspect of the decision.

(3) Failure to discharge judicial function

43    The submissions advanced to support the claim that the primary judge had failed to undertake his judicial function seemed to be as follows. First, the primary judge approached the case on the basis that the judgments relied upon in the bankruptcy notice were for rent which was not correct. Second, the reasons given were inadequate. As I have explained, more general assertions about influence and impropriety and fraud are not addressed because there was no recognisable basis articulated for those claims. The point about adequacy of reasons is addressed separately.

44    As to the reasons, there was a submission complaining about the fact that the primary judge referred to the affidavit of the petitioner in the reasons but did not refer to the affidavits of Mr Singh. However, there was no basis for a submission that the primary judge did not receive or consider the affidavits of Mr Singh. They were expressly received in to evidence (subject to relevance) after Mr Singh was asked to identify the affidavits he relied upon. Further, the primary judge did not refer in his reasons to all of the affidavits relied upon to support the petition. The reference made was to an affidavit having been read 'that supports an act of bankruptcy occurring on 25 June 2020'. The fact that the reasons were dealing with that particular point explains why there was no reference at that point to all of the affidavits read in the proceedings.

45    All of which leaves the submission about the subject matter of the judgments relied upon in the bankruptcy notice.

46    It is the case that the primary judge referred to 'the circumstances in which the judgement relating to outstanding rent was obtained' in his reasons. This was not accurate. As has been explained, the judgments were in respect of cost orders in proceedings brought by Mr Singh in NCAT. However, it is apparent from the reference to the point advanced by Mr Singh concerning s 86 of the Legal Profession Uniform Law Application Act that his Honour was aware that the judgments related to costs. So much is also evident from an examination of the transcript. Nothing turned upon the precise nature of the proceedings in NCAT.

47    The error has not been shown to infect the reasoning of the primary judge.

(4) Inadequacy of reasons

48    As has been noted, the reasons in the present case were delivered ex tempore. It has been observed that reasons delivered in those circumstances ought to receive a more benevolent construction: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [185] (Heydon J). Certainly, there ought to be regard to the context in which they were delivered. In the present case, it may be noted that in the course of oral submissions by Mr Singh, the primary judge indicated his views as to some contentions as they were presented and then invited Mr Singh to present any further argument. Therefore, the reasons should be viewed having regard to the complete record as to the conduct of the hearing.

49    Nevertheless, on the key point as to whether Mr Singh had demonstrated a proper basis as to whether the Court should go behind the judgment for the various reasons advanced by Mr Singh, the reasons simply stated: 'Nothing said by the respondent identified any proper basis as to why this Court should go behind the judgment debt'. For the reasons which follow, the expression of reasons in those bare terms, which fail to identify and engage with the points made in any way and which do no more than dismiss them are properly characterised as inadequate. Having regard to the nature of the jurisdiction being exercised it is particularly regrettable that the reasons did not engage with the points being made by Mr Singh.

50    It may be accepted that reasons need not be elaborate: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 (Mahoney CJ), 281 (McHugh JA). But they should address the crucial arguments of the parties, formulate issues for determination and resolve any issues of law and fact: DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [33] (Kiefel CJ, Keane and Edelman JJ). Some points do not require or even admit of expansive reasoning in order to determine whether they should be accepted or rejected: see, for example, Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [9] (Gleeson CJ and Hayne J). However, the present case was not of that kind. Mr Singh raised a number of contentions as the basis for a claim that the court should exercise its discretion to go behind the judgments relied upon to support the bankruptcy petition. The petition could not be determined without addressing the crucial points made as the basis upon which the court was invited to do so and then evaluating whether the discretion should be exercised on the basis of those points: as to the principles concerning the discretion to go behind a judgement at the hearing of a creditor's petition see Lowbeer v De Varda [2018] FCAFC 115; (2018) 264 FCR 228 at [53]-[58].

51    The reasons given by the primary judge did not identify or address the thrust of a number of the arguments of Mr Singh. They did not deal with whether there was any significance in his claims that he had not been able to participate in the process by which the costs were assessed, that the judgments had been obtained ex parte and that he was pursuing a challenge to the cost assessment in the Supreme Court. Nor did it address his allegations to the effect that there had been some form of misconduct in the course of the Supreme Court proceedings.

52    However, it is not sufficient for Mr Singh to demonstrate inadequacy in the reasons. Rather, in cases of insufficiency in reasoning by the primary judge, the appeal court is entitled to consider the merits and may itself decide the matter: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA). In the present case, the points made by Mr Singh fell into two categories. First, general allegations of some form of misconduct in the Supreme Court proceedings in which he sought to challenge the costs assessment. Those allegations lacked any particularity. Otherwise, the merits of the contentions advanced by Mr Singh did not depend upon contentious matters of fact about which findings were required to be made by the primary judge. In those circumstances, it was necessary for Mr Singh to demonstrate that there was legal merit in one or more of the contentions that he advanced as to why the primary judge ought to have gone behind the judgment. As is explained in these reasons, none of the contentions advanced by Mr Singh in the appeal have any merit. Therefore, this is not a case in which the inadequacy of the reasons should cause this Court to overturn the decision.

(5) Leave to amend the date of bankruptcy

53    The petition as presented failed to have regard to the extension of time for compliance with the bankruptcy notice that was effected by reason of the application by Mr Singh to set aside the notice. At the hearing before the primary judge the point was brought to the attention of the Court and leave was given to amend the date of bankruptcy. It was not suggested that the amendment gave rise to any prejudice to Mr Singh. It was entirely appropriate to make the amendment. No error has been demonstrated.

54    Relatedly, much was made by Mr Singh of the fact that the Affidavit of Debt sworn by Mr Khan had a type written date of 5 May 2021, but a handwritten date as part of the jurat of '5.4.21'. On the basis of evidence adduced in the appeal, I was satisfied that the affidavit was the Affidavit of Debt that was before the primary judge and I received the affidavit in the appeal on that basis.

(6) The date of bankruptcy

55    In the present case, the act of bankruptcy is determined by reference to when there was a failure to comply with the bankruptcy notice, with the time for compliance being extended by reason of the challenge to the notice. The claim made as to the date of bankruptcy not being correct seems to relate to the affidavit evidence as to the date of bankruptcy being when there was a failure to comply with the bankruptcy notice, but not allowing for the extension. For reasons that have been given, the primary judge was correct to allow for the extension of the time for compliance in determining the date of bankruptcy.

(7) The failure by Fobupu to state that it petitioned as trustee for a trust

56    The contention that Fobupu was required to bring the petition as trustee was advanced before Gleeson J as a reason why the bankruptcy notice should be set aside. Her Honour explained that the judgments relied upon did not identify the cost orders in NCAT as having been obtained by Fobupu in its capacity as trustee. For reasons given by her Honour (upheld by the Full Court) the point was without merit.

(8) Section 86 of the Legal Profession Uniform Law Application Act

57    It was claimed that the primary judge should have found that an application to review a costs assessor's determination under the provisions of the Legal Profession Uniform Law Application Act resulted in the operation of the reviewed decision being suspended under s 86. The relevant provisions provide that there may be a review within 30 days. The primary judge appears to have found that steps were not taken within time and therefore there could be no suspension.

58    Even assuming that Mr Singh did seek some form of review within time, in order to provide a basis for the Court to exercise its discretion to go behind the judgment he needed to demonstrate some merit in the basis for seeking such an assessment that could result in the reduction of the debt below the statutory minimum for which a petition may be presented. He presented no basis for such a contention before the primary judge or on appeal. Therefore, the point did not go so far as to impugn the existence of the liability which gave rise to the act of bankruptcy relied upon.

59    In submissions in the appeal, Mr Singh now claims that he has obtained an extension of time to dispute the costs assessment. This is not a matter that was advanced before the primary judge. Nor is it explained why there might now be expected to be a conclusion that the costs assessment should be substantially reduced.

60    These matters do not demonstrate error in the reasoning of the primary judge or the basis upon which leave might now be given to raise some further argument not advanced before the primary judge.

(9) The setoff

61    Before the primary judge, Mr Singh repeated the claim made before Gleeson J that he was entitled to a set-off. He made no attempt to impeach the reasoning of Gleeson J (as upheld by the Full Court) to the effect that there was no such set-off. In the appeal he submitted that the primary judge hearing the bankruptcy petition was not bound to reach the same conclusion. So much may be accepted. The discretion to go behind the judgments relied upon to support the creditors' petition remained. However, in the absence of any articulation as to why the reasoning by Gleeson J was incorrect or some other point that had not been addressed by her Honour there was no basis to support the exercise of the discretion. There was no such articulation by Mr Singh. The set off point does not establish a reason why the primary judge was in error in failing to go behind the judgment.

(11) The three interlocutory applications that had been before Senior Member Simon

62    Mr Singh claimed that Senior Member Simon had wrongly stated that three interlocutory applications brought by Mr Singh were not before her at the preliminary hearing which was the subject of the appeal with NCAT which resulted in the cost order. It appears that the appeal panel was of the view that even if the applications had been before the Senior Member there was nothing to appeal because no orders had been made on those applications. No submission was advanced by Mr Singh as to why these matters might mean that the cost order (and subsequent assessment) might be impugned. Nor was it explained why the primary judge was in error by reason of some matters concerning those applications. Therefore, matters relating to the three interlocutory applications have not been shown to be basis for concluding that there was appellable error.

(12) NCAT could only make cost orders in exceptional circumstances

63    The bald submission was advanced that NCAT could only make cost orders in exceptional circumstances. Otherwise, it was not suggested that the cost orders were not made within the confines of the discretion entrusted to NCAT. The submission does not establish appellable error.

(13) Failure to provide written reasons

64    It was alleged that there was a delay in the provision of settled written reasons. Any such delay is less than desirable: EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304. However, it is not a basis upon which to impugn the decision of the primary judge. The appeal was commenced in time and written reasons are available.

Conclusion

65    The appeal must be dismissed. At the hearing I indicated that provision would be made for the parties to make submissions as to costs. There should be orders to enable any such application to be dealt with on the papers.

Associate:

Dated:    10 February 2023