Federal Court of Australia

Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King (No 2) [2023] FCA 846

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth) (Rules), the time by which the respondents were to file a Notice of Objection to Competency under r 36.72(1) of the Rules be extended, nunc pro tunc, to 23 January 2023.

THE COURT DIRECTS THAT:

2.    The joint trustees provide to the other parties and my Associate a draft set of orders to reflect these reasons by 10.00 am on Wednesday, 26 July 2023.

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

REASONS FOR JUDGMENT

THOMAS J:

BACKGROUND

1    On 13 July 2016, a sequestration order was made against Mr Jerome King.

2    On 16 September 2019, Mr Brett Harrison, the trustee of the bankrupt estate of Mr Jerome King (trustee), applied to the Court for declarations that Jeremy David Allen King was an alias for Jerome King and that Jerome King had a legal and beneficial interest in a property described as Lot 801 on Registered Plan 162672 with title reference 15771110 situated at 13 Bairnsdale Court, Helensvale in the State of Queensland (the Helensvale property), which was registered to Jeremy David Allen King and Ms Larisa Ivanovna Yushkova as joint tenants.

3    Orders were also sought that the interest of Jeremy David Allen King in the Helensvale property be transferred to the trustee and that the Helensvale property be vacated, sold and the sale proceeds distributed, with Ms Yushkova at liberty to purchase the property, with her share in the property set-off against the purchase price (the primary proceedings).

4    The primary proceedings were heard before Judge Jarrett (as he then was) of the Federal Circuit Court of Australia (as it then was before joining with the Family Court of Australia to form the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA)) on 3 September 2020. The application before his Honour on 3 September 2020 was an application for default judgment or, in the alternative, an application for summary judgment.

5    Jeremy David Allen King appeared at the hearing by telephone, but did not file any evidence. Ms Yushkova did not appear and did not file any evidence.

6    On 4 February 2021, Judge Jarrett handed down reasons in Harrison (Trustee) v King (Bankrupt) [2021] FCCA 185 (Judge Jarrett’s first decision). Default judgment was entered against Mr King and Ms Yushkova on 4 February 2021. Judge Jarrett was satisfied that each was in default by not having defended the proceedings with due diligence, had not complied with orders and had not filed a response as required under the Federal Circuit Court Rules 2001 (Cth). Judge Jarrett also entered summary judgment. The orders and declarations sought by the trustee were made. Judge Jarrett also ruled that Jeremy David Allen King was an alias of Jerome King and that they were the same person. No appeal has been made against that decision.

7    On 24 February 2021, Ms Yushkova, through her solicitors, filed an application to set aside Judge Jarret’s first decision, insofar as it concerned Ms Yushkova and the Helensvale property, on the basis that she had not been served. Ms Yushkova also sought a readjustment of her beneficial ownership in the property, contending that she was the beneficial owner of the property in its entirety.

8    Judge Jarrett was not satisfied that Ms Yushkova was served with the proceedings. On 26 August 2021, Judge Jarrett made a decision in relation to Ms Yushkova’s application and handed down reasons (Harrison (Trustee) v King (Bankrupt) (No 2) [2021] FCCA 2015) (Judge Jarrett’s second decision).

9    Judge Jarrett made the following orders on 26 August 2021:

1.    The judgment entered on 4 February, 2021 against [Ms Yushkova] be set aside.

2.    Until the determination of the proceedings as between [the trustee of the bankrupt estate of Jerome King] and [Ms Yushkova] or earlier order, the appointment of statutory trustees in paragraph 4 of the orders made on 4 February, 2021 be stayed.

3.    By 22 September, 2021 [Ms Yushkova] shall file any further affidavit material upon [which] she intends to rely on at the hearing of the matter.

4.    By 6 October, 2021 [the trustee of the bankrupt estate of Jerome King] is to file [any] further affidavit material that he intends to rely on at the hearing of the matter.

5.    By 20 October, 2021 [Ms Yushkova] is to file her outline of submissions.

6.    By 3 November, 2021 [the trustee of the bankrupt estate of Jerome King] is to file his outline of submissions.

7.    The [parties’] costs of and incidental to the application in a case filed 24 February, 2021 be reserved to the trial judge.

8.    The matter is to be listed for a review on 12 November, 2021.

(errors in original)

10    The order made in Judge Jarrett’s second decision did not interfere in any way with the judgment which had been entered against Mr King.

11    Pursuant to the orders made in Judge Jarrett’s second decision, the matter was relisted before Judge Vasta for hearing.

12    On 18 February 2022, Mr Paul Cook and Mr Adam Johnston were appointed as joint trustees of the bankrupt estate of Jerome King (joint trustees) and were subsequently added to the proceedings by orders of Judge Vasta.

13    On 28 July 2022, Judge Vasta heard the proceedings. Ms Yushkova was represented by counsel at the hearing. Ms Yushkova and Mr King each gave evidence (and were cross-examined).

14    Mr King did not participate in those proceedings except by giving evidence (called by counsel appearing on behalf of Ms Yushkova).

15    Judge Vasta delivered reasons ex tempore (Cook (Trustee), in the matter of King v King [2022] FedCFamC2G 817) (Judge Vasta’s first decision) and ruled that the joint trustees had an equitable interest to the extent of 37.32% of the Helensvale property. Judge Vasta made orders lifting the stay of Judge Jarrett’s second decision and made declarations in the terms of Judge Jarrett’s first decision. The parties were to file and serve written submissions in relation to the question of costs and as to the form of orders.

16    On 13 October 2022, Judge Vasta handed down judgment on the question of costs and as to the form of orders (Cook (Trustee), in the matter of King v King (No.2) [2022] FedCFamC2G 838) (Judge Vasta’s second decision).

17    On 4 November 2022, a notice of appeal was filed in this Court, apparently appealing from Judge Vasta’s second decision. The notice of appeal referred to facts which were determined in Judge Vasta’s first decision. It is accepted by the parties that the appeal relates to both decisions of Judge Vasta.

18    This notice of appeal:

(a)    is an appeal from “all Orders of the Federal Circuit and Family Court of Australia, given on 13th October 2022 at Brisbane”, which was Judge Vasta’s second decision;

(b)    lists the appellants as being Larisa Ivanovna Yushkova and Jeremy David Allen King;

(c)    is footnoted as being prepared by Jeremy King;

(d)    was signed by both Jeremy King and Larisa Yushkova on 4 November 2022; and

(e)    sets out the grounds as follows:

1.    I, Larisa Yushkova, am appealing all the Orders, as the Judge did not take into account at the hearing or in the Orders given, the finding of facts:

a.    Whether I hold a Resulting Trust over the subject property, 13 Bairnsdale Court, Helensvale, Gold Coast, and

b.    Whether the Trustee has constitutional legal right in law to take their fees for a bankrupt person from a non-bankrupt, what as is determined in the Court Order.

2.    I, Larisa Yushkova, am also appealing the Court Order on the grounds that I require to be returned my full verified deposit that I personally paid in the purchase of the subject property. This was not determined by the Judge.

It is repugnant if I am not returned this deposit, and this amount is paid to the Trustees on their account of a bankrupt person.

3.    Also, penalty to be awarded against the Trustee for not allowing the subject property to be rented for an extended period of time, especially when mortgage payments needed to be paid to Westpac Bank. Also for the accounting of a relatively small amounts of rents received by the Trustees. Again, this was not determined by the Judge.

4.    Where in Clauses 24, 28, 29, 32, 36, 38 and 46 the Judge states I am dishonest and attempting to perpetrate a fraud upon the Court, and as in Clause 44 states, “I travel to Russia on a semi-regular basis”, indicating the Judge is anti-Russian, and as such endeavours to arrest assets of such Russian citizens, including myself.

5.    I was never dishonest in the Court hearing, answering all questions truthfully. All my evidence is factually backed up by exhibits. It is repugnant that I am labelled dishonest, and this is Court discrimination in Australia against Russians. This has to be addressed.

(errors in original)

19    Whilst the notice of appeal does conflate whether it relates to the first Judge Vasta decision or the second Judge Vasta decision, it is clear that it is not an appeal from Judge Jarrett’s first decision.

20    The appeal was out of time with respect to Judge Vasta’s first decision, but within time with respect to Judge Vasta’s second decision. The joint trustees have indicated that, insofar as Ms Yushkova is concerned, the joint trustees have no issue with the timing of the filing of the notice of appeal.

21    No such concession is made with respect to any appeal by Mr King.

22     An application for a stay of the sale of the Helensvale property pending the appeal from Judge Vasta’s second decision was filed on 15 December 2022.

23    The matter was heard by Derrington J and reasons were published on 10 February 2023 (Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King [2023] FCA 77).

24    Derrington J recorded in his reasons that Ms Yushkova, the second respondent in the proceedings before Judge Vasta, “claims to be entitled to the entire beneficial interest in [the Helensvale] property and seeks to prevent its sale pending the determination of an appeal from the first instance orders” (at [1]).

25    From the reasons, it is clear that the claim was asserted as being one by Ms Yushkova. Derrington J’s conclusions were:

40    Ms Yushkova’s application for a stay of the orders of the primary judge of 13 October 2022 must be dismissed.

41    Ms Yushkova must pay the costs of the bankruptcy trustees.

26    Following the filing of the notice of appeal, the joint trustees filed a Notice of Objection to Competency on the following grounds:

1.    The appeal filed by the appellants does not raise any valid grounds of appeal and it does not identify any error of law.

2.    The appellant, Jeremy King, does not have standing to file the appeal by reason [of] him being an undischarged bankrupt and he has filed the appeal out of time.

27    That Notice of Objection to Competency was filed out of time on 24 January 2023. In the Notice, the joint trustees applied for the question of competency to be heard and determined before the hearing of the appeal.

28    In later submissions, the joint trustees also submitted that Mr King had no standing to appeal for other reasons.

29    On 27 January 2023, Ms Yushkova filed a response to the Notice of Objection to Competency. Included in the grounds is the following:

6.    Jeremy King has standing in the Appeal as he has knowledge in the purchase of the property by me and in our non-relationship.

30    Mr King did not respond.

31    Ms Yushkova filed submissions in the appeal on 14 March 2023. The joint trustees filed submissions in response on 28 March 2023. Submissions in reply were filed by Ms Yushkova on 31 March 2023.

32    Mr King did not file any submissions.

33    The hearing of the appeal from the orders made by Judge Vasta was listed to take place on 24 April 2023 before Derrington J.

34    When appearances were taken, and Mr King was asked whether he was a party to the appeal, he responded in the affirmative. In answer to a question from Derrington J, counsel appearing for the joint trustees indicated:

[I]t has been uncertain, to be honest, as to whether or not Mr King has been a party to this appeal. All of the submissions that have been filed to date have been done through Ms Yushkova herself, personally.

…

There has been nothing as far as Mr King goes.

35    In the course of that hearing, Mr King said the following, when responding to a comment from Derrington J regarding whether an appeal by him would be within time:

But it’s not really necessary that it is, because it’s Larisa’s house. I’m not appealing. I don’t get anything at all.

…

So it’s really Larisa’s appeal.

36    In relation to his understanding, Mr King said:

The only thing is, this court case is here which says in it it’s the intention of both parties who are on the title, and therefore the court have to get my intention, therefore I have to appear.

(errors in original)

37    On 24 April 2023, Derrington J recused himself from hearing the matter. Derrington J made directions orders leading to the hearing of the adjourned appeal.

38    On 7 June 2023, an affidavit by Mr King sworn on 7 June 2023 annexing an appeal submission by Mr King was lodged.

39    Then on 15 June 2023, Mr King sent an email to the registry attaching an affidavit sworn on 15 June 2023 which annexed amended appeal submissions.

40    On 16 June 2023, an affidavit of Ms Yushkova sworn on 15 June 2023 was lodged. The affidavit annexed an appeal submission by Ms Yushkova.

41    A case management hearing was listed before me on 7 July 2023. Due to technical difficulties with Microsoft Teams, the case management hearing was adjourned to Wednesday, 12 July 2023.

42    On 10 July 2023, the solicitors for the joint trustees communicated by letter (sent by email) to Mr King and Ms Yushkova.

43    The letter referred to an application which was lodged on 5 May 2023 concerning an extension of time for the filing of the Notice of Objection to Competency to 23 January 2023, the date the Notice was filed and served.

44    The letter recorded the position of the joint trustees: that the appeal lodged against the decisions of Judge Vasta had failed to raise any valid grounds for appeal or identified any error of law (point 1 in the Notice of Objection to Competency); and that Mr King had no standing to be an appellant in the appeal proceedings (point 2 in the Notice of Objection to Competency).

45    The letter required that:

1.    Mr King writes to [the solicitors’] office … confirming that he is not an appellant to [the] appeal proceedings and withdraws his submissions … by 12:00pm Tuesday, 11 July 2023.

2.    Ms Yushkova admits the appeal’s lack of competency and files a Notice of Discontinuance … by 12:00pm Tuesday, 11 July 2023.

(emphasis omitted)

46    The letter warned that, failing compliance, Mr King and Ms Yushkova were placed on notice that the joint trustees intended to seek to have the application filed and heard at the case management hearing listed for 12 July 2023.

47    When the matter came before me on 12 July 2023, counsel for the joint trustees sought a determination with respect to the Notice of Objection to Competency, insofar as it dealt with the claim by Mr King.

THE JOINT TRUSTEES’ SUBMISSIONS

48    Judgment was entered against Mr King by order of Judge Jarrett in Judge Jarrett’s first decision. Judge Jarret’s first decision has never been appealed. The matter is finalised as against Mr King.

49    Were Mr King to seek to appeal Judge Jarrett’s first decision, an extension of time would be required. This would face strong objection based upon what has since occurred.

50    Mr King was not a party to the proceedings before Judge Vasta. Judge Jarrett’s second decision made it clear that only the judgment against Ms Yushkova was set aside. This is also recorded in Judge Vasta’s first decision. Mr King was a witness at the hearing. He was cross-examined. That was the extent of his participation in the hearing.

51    The notice of appeal was signed by Mr King and Ms Yushkova, who were identified as the appellants. However, the grounds of appeal clearly outline an appeal by Ms Yushkova, who is the true appellant.

52    The appeal is clearly an appeal from Judge Vasta’s decisions and nothing more. It is not an appeal of Judge Jarrett’s first decision.

53    Leading up to the scheduled hearing before Derrington J, the only submissions received were those lodged on behalf of Ms Yushkova as the appellant.

54    It has never been conceded that Mr King is a party to the appeal from Judge Vasta’s decisions. A Notice of Objection to Competency was filed, objecting to Mr King’s standing as a participant in the proceedings. Mr King did not ever respond to the Notice of Objection to Competency. Ms Yushkova did respond on 27 January 2023. It was asserted by Ms Yushkova that Mr King “has standing in the [a]ppeal as he has knowledge in the purchase of the property by me and in our non-relationship”. Whilst he may have knowledge as a witness, the response by Ms Yushkova is not a proper basis upon which it would be possible to conclude that Mr King has appropriate standing.

55    Until after the first adjourned appeal hearing and until the filing of the last submissions from Mr King, insofar as the joint trustees have been aware, and based upon what has previously been discussed in open court before Derrington J, the appeal in its entirety had been brought by Ms Yushkova.

56    The stay application which was filed was brought solely by Ms Yushkova. The appeal submissions which have been filed to date point towards the fact that it is Ms Yushkova who is the true appellant.

57    The joint trustees seek an order that the affidavit of Mr King be struck out because it bears no relevance to the appeal that Ms Yushkova brought. If any of the matters raised in Mr King’s affidavit are arguments on the appeal, then it would be possible for those to be raised by Ms Yushkova in any event.

58    The joint trustees should not be put to any task or costs of having to respond to Mr King’s affidavit.

59    In any event, as a bankrupt, Mr King’s property vests in the joint trustees. He is an undischarged bankrupt and the joint trustees have not given him any consent or authority to bring these proceedings. The proceedings are in respect of the possession of a property that Mr King formerly owned and therefore he requires the joint trustees’ consent because of the vesting of the property.

MR KING’S SUBMISSIONS

60    Mr King lodged a notice of appeal from Judge Vasta’s second decision which was signed by himself and Ms Yushkova and it was accepted for filing by this Court on 10 November 2022. On that basis, he submitted that he was a party to the present proceedings “as it was filed by the court, and it has been accepted by the court”.

61    Mr King signed the notice of appeal with Ms Yushkova and it was intended to be a notice of appeal from him. As to the reason why Mr King had not appealed against Judge Jarrett’s first decision, Mr King said: “I didn’t know whether it will be set aside for Ms Yushkova, and until I knew that, I didn’t appeal my decision because it had to be … a court hearing [for] Ms Yushkova”.

62    Mr King said: “I put it on hold until I knew whether or not I could appeal and ..... whether Ms Yushkova could have a court hearing”.

63    When the notice of appeal signed by Mr King was filed on 4 November 2022, he knew “that that was going ahead for Ms Yushkova then”.

64    He was aware his appeal was out of time, but could not help it because he was waiting for whether it was to be set aside or not.

65    He had standing in the case equally as Ms Yushkova. He said: “[b]oth of us have because both of us are on the title as at the date of purchase”.

66    The joint trustees could not restrict him in a hearing for their advantage. He submitted that the court decision “has to be open so that the judge gets all the information, not to restrict one party from the hearing”.

67    He should not be “restricted for their advantage in giving evidence” and said that the joint trustees were trying to prevent him “from giving evidence”.

DISCUSSION

68    In relation to the Notice of Objection to Competency, the joint trustees applied for the question of competency to be heard and determined before the hearing of the appeal.

69    The matter came before Derrington J on the original date for hearing.

70    Counsel for the joint trustees sought an extension of time in which to allow the filing of the Notice of Objection to Competency. The matter was raised with Mr King and Ms Yushkova.

71    As the matter was being adjourned on that date, counsel was asked whether the Notice of Objection to Competency would be heard at the same time as the appeal or whether there was an expectation that it be determined any time earlier.

72    Counsel indicated that “at this stage” there was no expectation that the Notice of Objection to Competency would be heard earlier than the final hearing, but that those instructions might change.

73    On 10 July 2023, the solicitors for the joint trustees forwarded a letter to Mr King and Ms Yushkova by email.

74    In the letter, amongst other things, Mr King was asked to communicate with the solicitors confirming that he is not an appellant to the appeal proceedings and withdrawing his submissions (in the form of an affidavit, but entitled “Outline of Submissions” filed on 7 June 2023).

75    Failing compliance with that requirement, the solicitors placed Mr King on notice that the joint trustees’ “intend to seek to have the Application filed and heard at the case management hearing listed on Wednesday, 12 July 2023 at 2:00pm” (emphasis and underlining removed).

76    The letter enclosed a copy of the interlocutory application seeking the following orders:

1.    Pursuant to rule 1.34 of the Federal Court Rules 2011 (Cth) (Rules), compliance with the requirement of rule 36.72(1) be dispensed with so as to allow the filing of the Respondents’ Notice of Objection to Competency.

2.    Further or in the alternative, pursuant to rule 1.39 of the Rules, the time by which the respondent was to file a notice of objection to competency under rule 36.72(1) be extended, nunc pro tunc, to 23 January 2023.

3.    Costs reserved.

(errors in original)

77    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) (Rules), the Court may dispense with compliance with any of the Rules, either before or after the occasion for compliance arises.

78    Pursuant to r 1.39, the Court may extend or shorten a time fixed by the Rules or by order of the Court:

(a)    before or after the time expires; and

(b)    whether or not an application for extension is made before the time expires.

79    In exercising the discretion under r 1.34, justice is the paramount consideration (State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 155 (per Dawson, Gaudron and McHugh JJ). The Rules allow the Court a wide discretion. Rule 1.39 deals specifically with extensions of time. The object is to allow the Court a discretion to extend time with the aim of avoiding injustice to parties.

80    The matters raised in the Notice of Objection to Competency deal directly with issues which are fundamental to the appeal. It is in the interests of justice that the matters be ventilated in the appeal proceedings.

81    In considering the exercise of the discretion under either of the Rules, it is necessary to consider whether non-compliance with the Rules, or an extension of the time limit, will cause any prejudice to the other party.

82    In this case, the Notice of Objection to Competency was served on 23 January 2023 and filed on 24 January 2023. Ms Yushkova filed a response on 27 January 2023. Mr King did not respond to the notice. Given the timing of the original hearing date and the adjournment which has followed, all parties have had ample time to consider all issues. It seems clear that neither Mr King nor Ms Yushkova has suffered prejudice as a result of the timing of the filing of the Notice of Objection to Competency.

83    I will order that, pursuant to r 1.39 of the Rules, the time by which the joint trustees were to file a Notice of Objection to Competency under r 36.72(1) be extended, nunc pro tunc, to 23 January 2023.

84    The joint trustees have, by Notice of Objection to Competency, raised whether Mr King has standing, as an appellant, to participate in the appeal against the decisions of Judge Vasta.

85    Insofar as Mr King was concerned, default judgment had been entered on 4 February 2021. Judgment was also entered against Ms Yushkova on 4 February 2021. However, it was later ordered that the judgment against Ms Yushkova be set aside and the hearing relating to Ms Yushkova be set down before Judge Vasta. The hearing before Judge Vasta related solely to the claims made by Ms Yushkova.

86    Mr King submitted that he lodged the notice of appeal which nominated Mr King and Ms Yushkova as appellants and was signed by Mr King and Ms Yushkova and was accepted for filing by the Court on 10 November 2022. He submitted that he was a party to the appeal to this Court “as it was filed by the court, and it has been accepted by the court”.

87    Mr King is incorrect in his submission. The fact that a document is accepted for filing does not validate the document. The step of filing a document makes the document available as part of the court process.

88    Mr King also submitted that he had signed the document with Ms Yushkova with the intention that it be a notice of appeal from him, including an appeal against Judge Jarrett’s first decision. Mr King said that the reason he had not earlier appealed against Judge Jarrett’s first decision was that he “didn’t know whether it will be set aside for Ms Yushkova, and until I knew that, I didn’t appeal my decision”. He submitted: “I put it on hold until I knew whether or not I could appeal and ….. whether Ms Yushkova could have a court hearing”. Mr King submitted that there had been an appeal, which was the notice of appeal signed by him on 4 November 2022, which is the appeal in this matter. He submitted that, at that time, he knew the matter would be “going ahead for Ms Yushkova then”.

89    It is clear that the notice of appeal relates to Judge Vasta’s decisions. There is some confusion as to which decision, but what is clear is that the notice of appeal does not relate to Judge Jarrett’s first decision, under which judgment was entered against Mr King. The notice of appeal refers expressly to the appeal from “all Orders of the Federal Circuit and Family Court of Australia, given on 13th October 2022” (which was Judge Vasta’s second decision).

90    It is also clear that the grounds of appeal relate only to Ms Yushkova. Each of the five grounds refers, in the first person, to Ms Yushkova, or to issues concerning Ms Yushkova. The orders sought are in favour of Ms Yushkova and again speak in the first person by reference to Ms Yushkova. It seems there is no proper basis upon which it could be asserted that the notice of appeal relates to an appeal by Mr King from Judge Jarrett’s first decision.

91    Mr King said that he waited to appeal until he knew that the decision involving Ms Yushkova would be set aside and that she could have a court hearing. He said the time this arose was when he filed the notice of appeal in November 2022.

92    Factually, the sequence of events is not consistent with what Mr King said. The judgment against Ms Yushkova was set aside by Judge Jarrett’s second decision, which was handed down on 26 August 2021. That is the date when it was clear that the judgment against Ms Yushkova had been set aside and Ms Yushkova would have a hearing. Mr King gave evidence in the proceedings which followed the judgment against Ms Yushkova being set aside, which was the Court hearing which he said would mean he would appeal. The notice of appeal was not lodged until 4 November 2022.

93    If Mr King decided that he wished to appeal against Judge Jarrett’s first decision, it would have been necessary for him to lodge an appeal. As any appeal would have been well out of time, it would have been necessary for him to seek an extension of time. None of those things has happened to date.

94    I also note that on the date of the originally scheduled hearing before Derrington J, Mr King said that he was not appealing and that it was “really Larisa’s appeal” (see [35] of these reasons).

95    I conclude that there is no appeal against Judge Jarrett’s first decision by Mr King.

96    None of the grounds of appeal from the decision of Judge Vasta involved any matters relating to Mr King. As I have said earlier (at [90]), each of the five grounds refers, in the first person, to Ms Yushkova, or to issues concerning her. The orders sought are in favour of Ms Yushkova and again speak in the first person by reference to her. No relief was sought in favour of Mr King, who claimed no entitlement.

97    It follows that Mr King has no interest in the appeal from the decision of Judge Vasta given on 13 October 2022.

98    The joint trustees have also raised the question of standing.

99    Mr King submitted that he had standing in the case equally to Ms Yushkova. He submitted this arose “because both of us are on the title as at the date of purchase”.

100    In the response to the Notice of Objection to Competency filed by Ms Yushkova, the points include “Jeremy King has standing in the Appeal as he has knowledge in the purchase of the property by me and in our non-relationship”.

101    In relation to the question of standing, it is relevant that:

(a)    Mr King does not claim ownership of the property at 13 Bairnsdale Court, Helensvale;

(b)    his assertion is that the Helensvale property is owned by Ms Yushkova; and

(c)    in this case, in relation to the claim made by Ms Yushkova, as enunciated in the grounds of appeal, no relief is sought on behalf of Mr King nor does Mr King have any entitlement. His position has been that, whilst he has no entitlement, Ms Yushkova does.

102    Generally, a person will only have standing if the person has some entitlement to relief. In the context of whether a person has a special interest (relevant to standing), it is likely that an applicant will have a special interest if the applicant “is likely to gain some advantage … if his action succeeds or to suffer some disadvantage … if his action fails” (Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493 at 530 (per Gibbs J).

103    The fact that a person has knowledge (in this case, of the purchase of the property by Ms Yushkova or in their “non-relationship”) does not mean the person has sufficient standing. There is no advantage which Mr King will gain in the event that the appeal succeeds and there is no suggestion of disadvantage if the appeal fails. It is not suggested that Mr King has any entitlement to relief.

104    In the circumstances, Mr King does not have standing in relation to the proceedings before this Court.

105    Mr King further submitted that the joint trustees could not restrict him at a hearing for their advantage. He submitted that the Court decision “has to be open so that the judge gets all the information, not to restrict one party from the hearing” and continued that he should not be “restricted for their advantage in giving evidence” and said that the joint trustees were trying to prevent him “from giving evidence”.

106    That submission appears to confuse issues relating to the evidence which can be put before a court and whether a person who gives evidence needs to be a party. It was also evident from what was submitted by Mr King that by “evidence” he may have been referring to submissions and case authorities.

107    Of course, if Mr King is not a party, it will not be possible for him to make submissions. However, if there are submissions he thinks should be made, it is open to Ms Yushkova to incorporate those submissions in what she advances.

108    In terms of giving fresh evidence, these are appeal proceedings where, unless a party is given leave to lead fresh evidence, reliance must be limited to evidence before the primary judge. However (subject to the restrictions and limitations in relation to fresh evidence before an appeal court), there is no need for a person to be a party to the proceedings in order for the Court to hear evidence from that person. As mentioned earlier, Mr King gave evidence in the proceedings before Judge Vasta.

109    The joint trustees have submitted that, in any event, as a bankrupt Mr King’s property vests in the joint trustees who have not given him any consent or authority to bring these proceedings.

110    The Bankruptcy Act 1966 (Cth) (the Act) has the effect of vesting in the Official Trustee all present property of the bankrupt, when the sequestration order is made. The Act characterises the property as being divisible amongst the creditors of the bankrupt (see Cirillo v Citicorp Australia Ltd [2004] SASC 293 at [75] (per Perry, Bleby and Gray JJ)).

111    The Act has the effect of dividing the right to exercise all legal and beneficial interests amongst the creditors of the bankruptcy, except where such a right relates to personal injury or wrong.

112    The dispute in this case is over the ownership of the Helensvale property between Ms Yushkova and the joint trustees in whom the property has vested. Mr King has not ever claimed any beneficial interest in the Helensvale property. Even if he had originally claimed a beneficial interest, the effect of the Act is to vest that interest in the joint trustees. In either case, Mr King either has no, or claims no, entitlement with respect to the Helensvale property. Again, this leads to the conclusion that Mr King does not have standing in relation to the proceedings before this Court.

113    Whilst not directly relevant, I should observe that, if Mr King has a dispute with the joint trustees in relation to a decision taken by the joint trustees in relation to the Helensvale property, the Act deals with the way in which such disputes should be dealt with (s 90-15 of the Insolvency Practice Schedule (Bankruptcy) as contained in Schedule 2 of the Act (formerly s 178 of the Act).

114    In relation to the application for an extension of time, I have ordered that, pursuant to r 1.39 of the Federal Court Rules 2011 (Cth) (Rules), the time by which the respondents were to file a Notice of Objection to Competency under r 36.72(1) of the Rules be extended, nunc pro tunc, to 23 January 2023.

115    I will also direct that the joint trustees provide to the other parties and my Associate a draft set of orders to reflect these reasons by 10.00 am on Wednesday, 26 July 2023.

Associate:    

Dated:    25 July 2023