Federal Court of Australia

Guss v Larkfield Industrial Estates Pty Ltd [2025] FCA 313

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the Respondent’s costs, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

1    The Appellant, Mr Guss, appeals from the whole of the judgment and orders of the Federal Circuit and Family Court of Australia (Division 2) (FCFCoA) published on 23 May 2024: Larkfield Industrial Estates Pty Ltd v Guss [2024] FedCFamC2G 465 (the primary judgment, or PJ).

2    The appeal was heard before me, as a single judge exercising the Court’s appellate jurisdiction, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act).

3    Mr Guss represented himself before the primary judge, and on the appeal.

4    The Notice of Appeal specifies two grounds of appeal as supporting the appeal from the whole of the judgment and orders of the primary judge:

(1)    The primary judge erred in dismissing Mr Guss’ “Application in a Proceeding filed on 10 November 2023”.

(2)    The primary erred in dismissing Mr Guss’ “Application for Review of the Registrars [sic] decision filed 6 October 2023”.

5    The application referred to in Ground 1 is an application for discovery (the discovery application). The primary judge dismissed that application, giving reasons (PJ at [32]-[96]).

6    The application referred to in Ground 2 is an application for review of the decision of a Judicial Registrar of the FCFCoA, made on 28 September 2023, sequestering Mr Guss’ estate under s 52 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), and dismissing an application for an extension of time and a stay or adjournment of the proceedings (the review application).

7    The Notice of Appeal does not elaborate on the nature of the errors asserted.

8    It may immediately be noted that Ground 1 concerns an interlocutory decision. However, it appears Mr Guss relies on this ground of appeal in his appeal against the final orders. I will therefore proceed on the basis that Mr Guss does not require leave to appeal, but, in order to succeed, he would need to establish that any error in the interlocutory refusal of discovery affected the final result: s 24(1E)(a) of the FCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [4]-[7] (Gaudron, McHugh and Hayne JJ); see also the discussion of Moshinsky J in Eisele v Commonwealth of Australia [2018] FCA 15 at [60]-[63], and the discussion of Logan J in Shannon v Commonwealth Bank of Australia (2014) 318 ALR 420; [2014] FCAFC 108 at [17]-[19] (Flick and Perry JJ did not consider the question of whether leave was required in their Honours’ reasons).

9    Nevertheless, the primary judge’s decision on the discovery application was discretionary, meaning that Mr Guss must also show error of the kind referred to in House v R (1936) 55 CLR 499 (House v R) at 504–505.

10    Mr Guss’s written submissions were not confined to the matters identified in the two grounds of appeal. Rather, his submissions also contended that the primary judge erred in refusing his application to adjourn the hearing, and in refusing his application to extend the time for compliance with the bankruptcy notice issued on 26 July 2022 (Bankruptcy Notice). Both of these applications were advanced orally, on the day of the hearing. Neither application comes within the terms of the Notice of Appeal, as framed. Larkfield noted that the challenge to the primary judge’s disposition of these applications fell outside the Notice of Appeal, but made submissions on them in any event. I refer below to an argument, advanced by Mr Guss at the hearing of the appeal, that his review application in fact encompassed these two issues (such that leave to amend is not required in order for him to advance them on the appeal).

11    As Mr Guss is self-represented, I confirmed with him that he wished to seek leave to amend his Notice of Appeal to include these two issues. Beneficially to Mr Guss, I will proceed on the basis that the challenges to those two determinations are advanced as part of the challenge to the final orders made (and so do not require leave on account of being interlocutory decisions, pursuant to the principles referred to above). However, in order to advance those grounds, he will need leave to amend his Notice of Appeal. For the reasons explained below, I have concluded that Mr Guss does need leave to amend and have refused leave to amend on the basis that the grounds lacked sufficient prospects of success, and (at least in relation to the adjournment refusal) did not occasion substantial injustice to Mr Guss, even if made in error.

Background

12    The background was set out in the primary judgment. That background includes an explanation of earlier proceedings, including in this Court, which are relevant to Ground 1. As no complaint has been made regarding the accuracy of her Honour’s summary, and in the interests of efficiency, I set out below the primary judge’s summary of the background:

5     A bankruptcy notice, BN 256 4 70, (Bankruptcy Notice) was issued by the Official Receiver on 26 July 2022. The Bankruptcy Notice demands payment in the amount of $236,934.15 pursuant to a County Court of Victoria proceeding and a number of associated proceedings in the County Court, Supreme Court and Court of Appeal of Victoria, in respect of which Mr Guss is personally liable or jointly and severally liable with other parties.

6     There is a significant factual history to the matter, which has involved considerable litigation in multiple courts.

Background to the debt

7     The applicant creditor, Larkfield Industrial Estates Pty Ltd (Larkfield), operates a commercial storage business. Mr Guss arranged for Larkfield to store goods. After a period of time, the storage charges for the furniture were unpaid and remained due. Larkfield then refused to release the furniture until the outstanding storage charges were paid.

8     Scandi International Pty Ltd and Casualife Furniture International Ltd (collectively, Corporate Plaintiffs) claimed to be the owners of the goods in storage and initiated proceedings in the County Court of Victoria to retake possession of the stored goods. Larkfield filed a counterclaim seeking orders for the sale of the stored goods to recover the unpaid charges. Mr Guss was joined as a third defendant to the counter-claim in August 2016. A fourth defendant, LHV Pty Ltd, was also joined to the counter-claim.

9     The substantive judgment, Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd [2018] VCC 584, dismissed the Corporate Plaintiffs’ application and upheld Larkfield’s counterclaim, ordering judgment against the Corporate Plaintiffs, the fourth defendant and Mr Guss.

10    A costs judgment, Scandi International Pty Ltd v Larkfield Industrial Estate Pty Ltd (No 2) [2018] VCC 628 was also made, with orders being made for the Corporate Plaintiffs, the fourth defendant and Mr Guss to pay the costs of the proceeding, including the counterclaim, and all reserved costs (Costs Orders). The costs liability of Mr Guss was limited to Larkfield’s costs incurred after 29 August 2016.

11     The defendants to the counter claim, including Mr Guss, sought to appeal those decisions in the Court of Appeal of Victoria. Leave to appeal was refused on 14 November 2018.

12     On 16 June 2021, a Registrar in the Costs Court (a division of the Supreme Court of Victoria) taxed the bill of costs pursuant to the costs judgment and made two separate costs orders (S ECI 2020 03561 and S ECI 2020 03558).

13     Pursuant to the Costs Orders Larkfield sold the goods left in its possession, realising $33,010.83.

Proceedings following the Bankruptcy Notice

14     As set out above, the Bankruptcy Notice was issued on 26 July 2022.

15     On 12 August 2022, Mr Guss filed an Application in this Court to set aside the Bankruptcy Notice. Orders were made by a Registrar on 21 February 2023 dismissing the Application and ordering Mr Guss to pay Larkfield’s costs in a lump sum figure to be determined if not agreed (Registrar’s BN Decision). A further order was made extending the time for compliance with the Bankruptcy Notice until 15 March 2023. On 15 May 2023, costs orders were made pursuant to the orders of 21 February 2023.

16     On 9 March 2023, Mr Guss filed an Application for Review of the Registrar’s BN Decision. Orders were made on 5 April 2023 dismissing the Application for Review of the Registrar’s BN Decision. Further orders were also made extending the time for compliance with the Bankruptcy Notice until 5 April 2023, and for Mr Guss to pay Larkfield’s costs in the Application for review: Guss v Larkfield Industrial Estates Pty Ltd [2023] FedCFamC2G 235 (FCFCOA Decision).

17     On 13 April 2023, Mr Guss filed a Notice of Appeal against the FCFCOA Decision. The Appeal was dismissed by the Federal Court of Australia and orders were made on 15 September 2023 for Mr Guss to pay Larkfield’s costs: Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105 (Federal Court Decision).

18     On 13 October 2023 Mr Guss filed an application in the High Court of Australia for special leave to appeal the Federal Court Decision (Special Leave Application).

19     On 7 March 2024, the High Court of Australia refused the Special Leave Application: Guss v Larkfield [2024] HCASL 30.

Current proceedings

20     Following the FCFCOA Decision, Larkfield filed a creditor’s petition on 6 April 2023 (Petition). Orders were made on 8 August 2023 allowing for substituted service on Mr Guss (8 August Orders).

21     Mr Guss filed an Application in a Proceeding on 27 September 2023 seeking, amongst other orders, that:

•    the time for compliance with the Bankruptcy Notice be extended to a date after the determination of the Special Leave Application;

•    the Petition be stayed or adjourned until the hearing and determination of the Special Leave Application.

22     Mr Guss also filed a Notice opposing the Petition on the basis that:

•    if the extension of time for compliance with the Bankruptcy Notice is granted the Petition must be dismissed or alternatively, the Petition be stayed or adjourned until the hearing and determination of the Special Leave Application;

•    the Petition claims an overstated amount; and

•    the issue of the Petition is an abuse of process.

23     As noted above, orders were made on 28 September 2023 dismissing the Application in a Proceeding and sequestering the estate of Mr Guss.

24     The Review Application was filed on 6 October 2023 and originally listed for hearing on 16 October 2023. At that hearing, Mr Guss sought to cross-examine Mr Ades, the Chief Executive Officer of Larkfield, who filed an affidavit of debt on 13 October 2023. Mr Guss also raised his intention to file an Application in a Proceeding with respect to discovery of documents. Mr Ades was not available on the day of hearing for cross-examination, and as such the matter was adjourned to Monday, 20 November 2023. The Discovery Application was filed on 10 November 2023.

25     In the afternoon of Friday 17 November 2023, chambers received email communication from an unnamed person from the “office” of Mr Guss, requesting an adjournment of the hearing due to Mr Guss being unwell and attaching a copy of a medical certificate of the same date. An adjournment was not granted in chambers and the matter remained listed. Mr Guss did not attend the hearing on 20 November 2023. At that hearing, orders were made for Mr Guss to file evidence relating to his medical condition and the proceedings were adjourned for a short period. Following Mr Guss filing an affidavit of his medical practitioner, a further adjournment for a period of two weeks was granted and the proceedings were listed for hearing on 8 December 2023.

26     At 7.17pm on 7 December 2023, chambers received further email communication from an unnamed person from the “office” of Mr Guss. That email stated Mr Guss had been admitted to hospital that afternoon and that “accordingly tomorrows hearing will have to be adjourned to a date to be fixed after Mr Guss is again well enough, which we don’t know when this will be”. A letter from Mr Guss’ treating cardiologist was attached, stating Mr Guss had been admitted to Epworth Hospital “for further management of an acute cardiac condition” and that Mr Guss “will not be able to participate in his scheduled duties for the foreseeable future”. The solicitor for Larkfield in reply email indicated they did not consent to an adjournment of the hearing. Chambers sent an email to both parties in the morning of 8 December 2023 confirming that the matter remained listed at 10.00am.

27     At the hearing on 8 December 2023, orders were made adjourning the matter for further final hearing on 27 March 2024. Orders were also made for Mr Guss to file and serve any further submissions and evidence with respect to both Applications by 13 February 2024 and for Larkfield to file any further submissions and evidence with respect to both Applications by 27 February 2024. Further orders were made for Mr Guss to notify the Court by 13 March 2024 of his capacity to appear at the hearing on 27 March 2024. Notations were made that it is intended for both Applications to be heard at the hearing on 27 March 2024, and that if no attendance was made by or on behalf of Mr Guss, the hearing may proceed in his absence pursuant to r 13.06(1)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules).

28     On 13 March 2024 Mr Guss confirmed his capacity to appear at the hearing on 27 March 2024.

Ground 1: the discovery application

13    By his discovery application, Mr Guss sought the following categories of documents (PJ at [33]):

2.     Documents setting out the details of the sale or disposal permitted by the orders 15.2(a) and (c) of the Orders of Judge Anderson made 9 May 2018 (the said ordre) in County Court of Victoria proceeding CI-16-02981 (the County Court proceeding) including without limiting the generality thereof, the advertising thereof, the dates of sale, the reserve prices ( if any) of the goods offered for sale, the individual prices obtained for the goods sold, the expenses incurred including auctioneers and other charges,

3.     Documents setting out the itemised costs of conductiing the the above sales and details of calculation of the net proceeds

4.     Documents setting out details of the application of the proceeds of sale pursuant to Order l5.2(d) of the said order.

5.     The applicants or its legal representatives documets and ercords of the taxation of costs of the taxation of costs by Judicial Registrar Gourlay in Supreme Court of Victoria, proceehding S ECI 2020 03562 dated 16 June 2021

6.     Copies of the applicants or its solicitors records and docummets concerning the submission to and /or application to issue of Bankruotcy Notice BN 256470 dated 26 July 2022 and any corresponnce between the Official Rceivers Office in respect thereto and and diary notes of any discussions with the Offial Receivers Office in respect thereto.

14    These documents were sought on the basis that they would be relevant to the de novo review of the Registrar’s decision, being conducted by the primary judge.

15    The primary judge further categorised the discovery into three categories, and noted the oral application for a further category of discovery (PJ at [46]-[47]):

46     In summary, Mr Guss seeks discovery of the following categories of documents:

(1)     Documents relating to the sale of goods (paragraphs 2 – 4 of the Discovery Application)

(2)     Documents and records relating to the Supreme Court of Victoria Taxation of Costs dated 16 June 2021 (paragraph 5 of the Discovery Application).

(3)     Documents and records relating to the Bankruptcy Notice and any correspondence and diary notes of discussions with the Official Receiver regarding the Bankruptcy Notice (paragraph 6 of the Discovery Application).

47     At the hearing, Mr Guss sought leave to add a further category of documents to be discovered. In summary, those documents relate to the asserted failure of Larkfield to seek recovery from other parties. Mr Guss submitted that those documents are relevant to Mr Guss’ abuse of process claim.

16    On the appeal, Mr Guss did not take issue with her Honour’s categorisation, set out above, and adopted the same categories in his submissions.

17    Mr Guss also accepted that the primary judge correctly set out the relevant provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the FCFCoA Act) and the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the FCFCoA Rules) and the relevant authorities in the following passages of the primary judgment:

Legal principles with respect to discovery

38    In determining the Discovery Application, the Court must have regard to the objects of its governing legislation. The FCFCOA Act provides, relevantly, that its object is to “ensure that justice is delivered by federal courts effectively and efficiently”: s 5(a) FCFCOA Act. Those objects must be read in conjunction with the overarching purpose of the civil practice and procedure provisions. Section 190(1) of the FCFCOA Act provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

(a)    according to law; and

(b)    as quickly, inexpensively and efficiently as possible.

39    Section 176(2) of the FCFCOA Act prohibits discovery in general federal law proceedings unless the Court declares that “it is appropriate, in the interests of the administration of justice, to allow…discovery”.

40    Section 175(3) of the FCFCOA Act further provides that in deciding whether to make a declaration pursuant to s 176(2), the Court must have regard to:

(a)    whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and

(b)    such other matters (if any) as the Court or the Judge considers relevant.

41    Division 14.2 of the Rules deals with the obligation to disclose and, relevantly, provide as follows:

14.02 Declaration to allow discovery

(1)    A declaration may be made under subsection 176(2) of the Act to allow discovery on the application of a party or on the Court’s own initiative.

Note: Discovery is not allowed in relation to a general federal law proceeding unless the Court or a Judge declares that it is appropriate in the interests of the administration of justice (see subsections 176(2) and (3) of the Act).

(2)    If a declaration is made, the Court or a Registrar may make an order for disclosure:

(a)    generally; or

(b)    in relation to particular classes of documents; or

(c)    in relation to particular issues; or

(d)    by a specified date.

42    In Abrahams v Qantas Airways (No.2) [2007] FMCA 639; (2007) 210 FLR 314, Lucev FM (as his Honour then was) summarised the relevant considerations in determining whether to make a declaration that discovery is in the interests of the administration of justice. By reference to what was then the Federal Magistrates Act 1999 (Cth), his Honour observed at [25]:

In summary, it appears that in order to obtain an order for discovery in this Court the Court must determine on the available evidence that it is in the interests of the administration of justice to do so, and in making that determination must have regard to whether allowing discovery would be likely to contribute to the fair and expeditious conduct of the proceedings and such other matters as the Court considers relevant. Those other matters might include:

(a)    the relevance of any documents sought to be discovered;

(b)    the volume of documents sought to be discovered;

(c)    whether there is a court book containing relevant documents, and the extent to which relevant documents are included in the court book;

(d)    whether discovery would narrow the issues;

(e)    whether both parties seek discovery;

(f)    whether there is consent to discovery;

(g)    whether discovery is “of benefit” in the litigation; and

(h)    the effect of discovery on litigants, especially, vulnerable litigants.

43    In Hartnett Legal Services Pty Ltd v Ballantyne [2016] FCA 1116, the Federal Court considered the issues of “disclosure generally” and relevance under the then Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act), Rangiah J observed at [33]:

… it would be quite inconsistent with s 45 of the FCC Act to construe “disclosure generally” as importing a wide test of relevance. The ‘Peruvian Guano’ test was formulated on the basis of a desire to “make the rule as large as we can with due regard to propriety”. In contrast, s 45 operates to cut down the circumstances in which discovery may be ordered. It would be inconsistent with s 45 to interpret “discovery generally” as referring to the traditional test for discovery when, as Lucev FM observed in Abrahams, traditional discovery is generally prohibited in the Federal Circuit Court.

44    In Vinden v Wrong Fuel Rescue Pty Ltd [2019] FCCA 1091 at [10]-[13], Judge Kendall of the then Federal Circuit Court of Australia observed that:

(a)    overall, there is a reluctance in this Court to grant orders for discovery and interrogatories, referring to Vanden Driesden v Edith Cowan University [2012] FMCA 735 where the Court referred to the power as one that is “rarely used”;

(b)    section 45(1) of the FCC Act (equivalent to s 176(2) of the FCFCOA Act) is a general statutory prohibition on discovery; and

(c)    in this Court there appears to be a presumption that the “fair and expeditious conduct of a proceeding does not require discovery”: Devine Marine Group Pty Ltd v Fair Work Ombudsman [2013] FCA 442 at [54], noting, however, that this does not mean it will not ever be given.

18    Having set out the legislation and authorities, and before considering each of the three categories of documents sought, the primary judge observed that those matters “support the position that discovery is very much the exception and not the rule in the practice and procedure of this Court” (PJ at [45]).

19    In rejecting the application for discovery of documents relating to the sale of goods (Sale Documents), the primary judge:

(1)    noted that Mr Guss claims that the Bankruptcy Notice misstates the amount owed by him on the basis that the Respondent (Larkfield) failed to account for the proceeds of the sale of goods and there is no way to verify the correct amount had been applied;

(2)    explained that Mr Guss advanced the very same point (ie that the Bankruptcy Notice misstated the amount owing) on the same basis (ie that Larkfield had failed to account for the proceeds of the sale of goods) in the earlier litigation in which he sought orders setting aside the Bankruptcy Notice, including the decision of Rofe J in Guss v Larkfield Industrial Estates Pty Ltd [2023] FCA 1105 (Guss BN);

(3)    recognised that the proceeding before her concerned whether a sequestration order should be made pursuant to s 52 of the Bankruptcy Act, whereas the earlier proceeding concerned whether the Bankruptcy Notice should be set aside pursuant to s 41(5) of the Bankruptcy Act (PJ at [59]);

(4)    concluded that “[t]he matters in relation to the sale of goods sought to be advanced by Mr Guss in opposition to the Petition have therefore already been determined” (in the earlier proceedings) and that “there can be no issue in relation to the Sale Documents to which discovery can apply which is relevant to the Review Application” (PJ at [62]);

(5)    concluded that, in any event, she accepted Larkfield’s submission that the continued agitation of this issue constitutes an abuse of process, citing Quall v Northern Territory of Australia [2009] FCA 18 at [100]-[102] in support (PJ at [63]);

(6)    observed (in connection with the abuse of process) that the proceeding before her was the fourth proceeding in which the same argument had been run by Mr Guss (including the failed application for special leave to the High Court) and it had been “fully and conclusively litigated” (PJ at [64]);

(7)    concluded that, in any event, Larkfield voluntarily disclosed documents to Mr Guss on 14 November 2023, as to which her Honour rejected the submission that they had been provided to him “under objection”, such that he could not use them, and also observed that there was no evidence before her on the contents of the documents, so as to substantiate submissions that were made about a redaction to an email (PJ at [65]-[66]); and

(8)    concluded, at [69], that discovery of the Sale Documents would not contribute to the fair and expeditious conduct of the proceedings (but would have the opposite effect) and that the discovery sought was not in the interests of the administration of justice.

20    Mr Guss submitted that, contrary to s 91 of the Evidence Act 1995 (Cth) (the Evidence Act), the primary judge “relied on the facts and decisions of” Rofe J in Guss BN (concerning the Bankruptcy Notice) and Judge Anderson’s judgments in Scandi International Pty Ltd v Larkfield Industrial Estates Pty Ltd [2018] VCC 584 and Scandi International Pty Ltd v Larkfield Industrial Estates Pty Ltd (No 2) [2018] VCC 628 (the County Court judgments).

21    Section 91 of the Evidence Act provides as follows:

91     Exclusion of evidence of judgments and convictions

(1)     Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.

(2)     Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

22    The primary judge only referred to the County Court judgments in setting out the background to the matter before her, as it was the County Court judgments that resulted in the judgment and costs order against Mr Guss (PJ at [9]-[10]). There is no merit in the suggestion that the primary judge’s reference to the County Court judgments in this way was contrary to s 91 of the Evidence Act.

23    Mr Guss’ submissions regarding reference to Guss BN (and the FCFCoA judgment below) also fail as they misunderstand s 91. Contrary to Mr Guss’ submissions, the primary judge did not refer to Guss BN as proof of the existence of any fact relevant to the determination of the matter before her (which was relevantly the discovery application). Rather, the primary judge relied on Guss BN on the basis that the point that Mr Guss wished to run had already been run and determined in the proceedings concerning the Bankruptcy Notice. In any event, even if Mr Guss’ s 91 submission regarding reference to Guss BN had any merit, his arguments would leave untouched the second and third reasons given by the primary judge for rejecting the discovery application insofar as it concerned the Sale Documents category.

24    Recognising that the primary judge also refused discovery of this category on abuse of process grounds, Mr Guss submitted that no abuse of process in fact occurred when regard is had to s 91. Again, this submission is misconceived. The primary judge found that the continued agitation of the same point was an abuse of process. That did not involve relying on a prior judgment to establish a fact in issue, contrary to s 91.

25    Finally, Mr Guss’ only point in relation to the third reason given by the primary judge — ie that Larkfield had already given voluntary disclosure — was that the primary judge accepted that voluntary disclosure is not discovery. This goes nowhere. The point the primary judge was making was that there was no utility in an order for discovery in any event, when voluntary disclosure had been made.

26    None of Mr Guss’ submissions on the discovery application insofar as it concerned the Sale Documents category establishes any error on the part of the primary judge, let alone any error of the kind referred to in House v R.

27    I turn, now, to the primary judge’s dismissal of the discovery application insofar as it sought documents concerning the taxation of costs in the Supreme Court of Victoria, being the second category.

28    In rejecting this aspect of the discovery application, her Honour observed, first, that the costs proceeding had been determined, a final order made, and there was no appeal from that order (PJ at [75]). Her Honour then set out the steps by which she concluded that the argument Mr Guss sought to run in the review of the sequestration order had already been run, and lost, in the proceedings in relation to the Bankruptcy Notice (PJ at [76]-[81]). Finally, the primary judge identified that, as with the Sale Documents category, her Honour accepted Larkfield’s abuse of process argument (PJ at [82]).

29    Mr Guss’ submissions on this category of documents go no further than contending that, only by obtaining discovery could he show the amount claimed under the costs order “is invalid” and citing Ferguson v Premier Plasterboard Pty Ltd [2018] FCA 1028 (Ferguson) in support of the proposition that the Court can go behind the judgment in respect of the costs order.

30    In Ferguson, White J set out the relevant principles, as described by Wigney J in Katter v Melhem (No 2) (2014) 319 ALR 646; [2014] FCA 1176. It may be accepted that a court can “go behind” a judgment, but the authorities make it abundantly clear that the court will only go behind a judgment in limited circumstances. Nothing Mr Guss says comes close to bringing his case within those circumstances. Nor do his submissions even attempt to set out how he says that the primary judge erred in rejecting this aspect of his application, including on abuse of process grounds.

31    The third category of documents was said to be relevant to an argument Mr Guss wanted to run that Larkfield’s petition constituted an abuse of process on the basis that the Official Receiver had not been informed that there was a dispute as to the quantum claimed in the Bankruptcy Notice. As the primary judge set out (PJ at [84]) Mr Guss acknowledged that he ran the same point in the earlier proceedings concerning the Bankruptcy Notice, including all the way to his application to the High Court for special leave to appeal Guss BN.

32    The primary judge rejected the application for discovery of the documents in the third category on the basis that Mr Guss had not identified any basis (legislative or regulatory) requiring that a party applying for a bankruptcy notice must make the disclosures Mr Guss said had to be made. Her Honour also observed that no supporting case law had been cited. The primary judge concluded that it was not possible to see how discovery would contribute to the fair and expeditious conduct of the review application, noting also that the same argument had been rejected in the previous litigation on the Bankruptcy Notice, and special leave had been refused (PJ at [86]).

33    The fourth category, which Mr Guss sought by oral application made at the hearing before the primary judge, was sought on the following basis (PJ at [88]):

At hearing Mr Guss submitted that the failure of Larkfield to seek recovery from the Corporate Respondents was an abuse of process. Mr Guss submitted that this failure was relevant to the amount claimed in the Petition and was relevant to whether there was “other sufficient cause” that a sequestration order ought not be made pursuant to s 52(2)(b) of the Bankruptcy Act. Mr Guss submitted that it was a matter of natural justice, common sense and fairness that Larkfield ought seek recovery from the Corporate Respondents.

34    The primary judge refused leave to amend the discovery application, giving the following reasons (PJ at [91]-[95]):

(a)    Mr Guss and the corporate respondents were jointly and severally liable for the judgment debt and costs order, and Mr Guss provided no authority to support any contention that Larkfield was required to first seek recovery from the corporate respondents (which were $2 companies, and were both deregistered);

(b)    the very same issue had been litigated, and conclusively lost by Mr Guss, in the proceedings in relation to the Bankruptcy Notice;

(c)    accordingly, as there was no issue in relation to which the documents would assist, ordering discovery would be of no utility and would not contribute to the fair and expeditious conduct of the proceeding; and

(d)    it was not in the interests of the administration of justice to order discovery.

35    Mr Guss’ submissions on the third category of documents, and the category of documents he sought orally, did not include any substantive submissions, beyond apparently asserting the relevance of the documents sought. His submissions did not identify any error in the primary judge’s reasons for refusing his discovery application in relation to those categories, and there is no obvious error in the primary judge’s course of reasoning.

36    For the foregoing reasons, Mr Guss has not established any error on the part of the primary judge in disposing of the discovery application. It follows that he has not established any error of the kind referred to in House v R. Ground 1 of the appeal must be rejected.

Ground 2: the review application

A note on why the adjournment and extension applications are not within Ground 2 of the Notice of Appeal

37    As noted above, Ground 2 concerns the primary judge’s dismissal of Mr Guss’ application for review of the decision of a Judicial Registrar of the FCFCoA. Mr Guss’ application, which is referred to in Ground 2, sought an order that the orders made on 28 September 2023 be set aside. The orders of 28 September 2023 were the orders of the Registrar, dismissing Mr Guss’ application (filed on 27 September 2023), and sequestering Mr Guss’ estate.

38    The application Mr Guss filed on 27 September 2023 sought an extension of time for compliance with the Bankruptcy Notice until a date after the hearing and determination of his appeal against the decision and orders of Rofe J in Guss BN “or alternatively in proceeding MLG1873/2023 or MLG591/2023 in the Federal Circuit and Family Court as the court may please”. That application falls also to be understood in the context of Mr Guss’ “Notice stating grounds of opposition to application, interim application or petition”, also filed on 27 September 2023. There, Mr Guss stated that he would oppose the petition on three grounds, the first of which referred to an extension of time being granted and the petition being dismissed or stayed pending the hearing and determination of Mr Guss’ appeal against the judgment of Rofe J in Guss BN. That notice did not indicate that the extension of time was being sought on any basis that would still be live even if the application for special leave were refused.

39    The first proceeding number cited in Mr Guss’s application filed on 27 September 2023 — MLG 1873/2023 — included a typographical error, but was clearly intended to refer to the proceeding at the FCFCoA level (MLG1873/2022), which was the subject of the appeal brought in this Court which led to the decision of Rofe J in Guss BN. The second proceeding number cited was the file number of the proceeding, the determination of which Mr Guss appeals in this proceeding.

40    The upshot is that the application Mr Guss made to the FCFCoA Registrar was to extend time and adjourn until the High Court special leave application in respect of Guss BN had been heard and determined. By the time his review application before the primary judge came on, the special leave application had been determined, and refused (and so the foundation for the review of the Registrar’s decision to decline to adjourn, stay or extend time, fell away). This explains why, before the primary judge, Mr Guss proceeded with oral applications for an adjournment and an extension of time. This is the way in which the primary judge understood Mr Guss’ application, as stated in the primary judgment at [134]:

Accordingly, the relief sought in the Application in a Proceeding was to allow the Special Leave Application to be determined. As already set out, the Special Leave Application was refused on 7 March 2024. Notwithstanding Mr Guss confirming at the hearing that he continued to press the Application in a Proceeding, it is apparent that the basis of the application no longer exists. The Special Leave Application has been determined and refused. As such, given the hearing of the Application in a Proceeding is to proceed by way of a hearing de novo, the application is now redundant and the relief sought of no utility. The application is therefore accordingly dismissed.

41    On appeal, Mr Guss submitted that his application filed on 27 September 2023 could be read as encompassing an application for an extension of time notwithstanding the outcome of the special leave application. This was said to be indicated by the use of the word “alternatively”. However, Mr Guss conceded that, at the time of the hearing before the primary judge, he “had not perceived that it was also covered in the alternative” and that this interpretation had only occurred to him later, “on re-reading” the application. This indicates that the application was never put to the primary judge on the basis that Mr Guss was seeking an extension of time notwithstanding the outcome of the special leave application. (I note that no transcript of the hearing before the primary judge was available for reference in the appeal).

42    I am therefore satisfied that the adjournment and extension applications that Mr Guss made orally to the primary judge were not part of the review application that is referred to in Ground 2 of the Notice of Appeal. I deal with them as Proposed Ground 3 and Proposed Ground 4. However, as I go on to explain, even if those two issues — extension of time and adjourning or staying the hearing — were approached on the basis that they were advanced before the primary judge as part and parcel of the review application (and not as fresh, oral applications), the outcome would be the same, as Mr Guss’ appeal on these issues would fail in any event.

The substance of the application for review of the sequestration order

43    Mr Guss contends, on the appeal, that Larkfield has not proved its claim pursuant to s 52 of the Bankruptcy Act on the basis that it had not established that the debt remained owing as at the date of the hearing, as required by s 52(1)(c) of the Bankruptcy Act.

44    The primary judge made the following finding (PJ at [160]):

the amount owed by Mr Guss as at 6 April 2023 was still owed at the time at which the Petition was heard. As such, I am satisfied that Larkfield has proved that the debt on which it relies is still owing.

45    6 April 2023 was the date on which the petition was presented.

46    The primary judge noted that Larkfield relied on the affidavit of debt of Mr Paino, property manager for Larkfield, filed on 26 March 2023. Mr Paino referred to Larkfield’s books and records in respect of Mr Guss, which recorded that the figure stated in the petition remained due and owing. The primary judge noted (PJ at [158]) concessions obtained in the cross-examination of Mr Paino: he did not personally calculate the amount, did not know how it was calculated and relied on the table in Guss BN as an aide as to the initial quantum. Her Honour nonetheless rejected the submission that Larkfield had failed to prove the judgment debt was still owed, as required by s 52(1)(c) of the Bankruptcy Act. The primary judge’s reasons were as follows (PJ at [159]-[160]):

159    … Firstly, s 52(l)(c) requires that the Larkfield prove that the debt is still owing. Mr Paino’s affidavit is not the only evidence before the Court of the debt. The Petition sets out that Mr Guss owes Larkfield $236,394.15 and how that sum is comprised. The affidavit verifying the Petition was deposed to by the then Chief Executive Officer of Larkfield, Mr Ades on 6 April 2023. That affidavit deposes to:

(a)     Mr Ades having access to the books and records of Larkfield;

(b)     the quantum of the debt and its composition as set out in the Petition being within Mr Ades’ knowledge; and

(c)     Mr Guss having failed to pay the debt or make arrangements to Larkfield’s satisfaction for payment of the debt.

160     Secondly, on 13 and 26 September 2023, 13 October 2023, 17 November 2023, and 7 December 2023, Mr Ades filed affidavits of debt confirming that the debt was, at those dates, still owed by Mr Guss. Despite Mr Guss requiring Mr Ades to attend the hearing of the Review Application for cross examination and him doing so, Mr Guss elected not to cross exam Mr Ades. Thirdly, Mr Piano’s evidence was that he had access to the books and records of Larkfield, he had reviewed them for the period 6 April 2023 until 26 March 2024 and Mr Guss had made no payments to Larkfield in that period. Fourthly, Mr Guss does not contend that he has made any payment of the debt. Accordingly, the amount owed by Mr Guss as at 6 April 2023 was still owed at the time at which the Petition was heard. As such, I am satisfied that Larkfield has proved that the debt on which it relies is still owing.

47    On the appeal, Mr Guss’ submissions did not identify any error in the primary judge’s reasoning. As best I can understand his contentions, his argument was that the affidavit of Mr Ades was “not an affidavit of debt” but was an affidavit “verifying the petition in standard form”.

48    Section 52(1) of the Bankruptcy Act provides as follows:

(1)     At the hearing of a creditor’s petition, the Court shall require proof of:

(a)     the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient);

(b)     service of the petition; and

(c)     the fact that the debt or debts on which the petitioning creditor relies is or are still owing;

and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor.

49    Section 52(2) provides that:

(2)    If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor:

(a)     that he or she is able to pay his or her debts; or

(b)     that for other sufficient cause a sequestration order ought not to be made;

it may dismiss the petition.

50    Mr Guss’ submissions do not provide any principled basis for contending that the primary judge could not be satisfied that the debt on which the petitioning creditor relied was still owing where the proof comprised an initial affidavit of the kind provided by Mr Ades in this matter, subsequent updating and confirmatory affidavits of Mr Ades, and an updating affidavit of the kind sworn by Mr Paino stating that no payments had been made.

51    Although Mr Guss’ submissions seek to explain his decision not to cross-examine Mr Ades on the basis that he was interstate and would have had to give evidence by video link, he was available to be cross-examined, but Mr Guss did not cross-examine him.

52    No error on the part of the primary judge has been established in relation to the basis upon which her Honour was satisfied that the debt on which Larkfield moved remained owing.

53    Mr Guss also advanced an abuse of process contention. He contended that the petition was an abuse of process on two bases:

(1)    Larkfield failed to fully disclose to the Official Receiver that there was a dispute as to the quantum claimed in the Bankruptcy Notice; and

(2)    Larkfield ought to have first sought recovery from the other parties to the County Court proceedings. Mr Guss here referred to the primary judgment at [91] and raised s 91 of the Evidence Act, contending that there was no admissible evidence for the primary judge’s conclusion that it would have been uneconomic to pursue the other parties.

54    The primary judge addressed the first matter in the context of Mr Guss’ discovery application. The primary judge rejected the oral application for discovery of documents to advance the abuse contention on the basis that the point had already been litigated by Mr Guss in the earlier proceedings on the Bankruptcy Notice, and had been determined (including right up to the special leave level) against Mr Guss.

55    As mentioned, the second matter picks up on paragraph 91 of the primary judgment. That was part of the judge’s analysis of the discovery application. In that paragraph, the primary judge noted that the corporate respondents are jointly and severally liable for the judgment debt and the costs order, and that Mr Guss had not referred to any authority in support of his contention that Larkfield ought first to seek recovery from the other parties. The primary judge referred to there being evidence that Larkfield had determined not to seek recovery from the corporate respondents as they were $2 companies and both are deregistered. Whether or not there was evidence for the next matter stated by the primary judge — that Larkfield determined that it would not be economic to seek to recover from those respondents — is neither here nor there.

56    There is no basis for Mr Guss’ suggestion that it is an abuse of process for a creditor to present a petition against a judgment debtor just because there are other persons or entities that are jointly and severally liable. Nor, contrary to Mr Guss’ contentions, is s 91 of the Evidence Act relevant to the primary judge’s reference to the County Court proceedings in connection with Mr Guss being jointly and severally liable for the judgment debt and costs order. There was no error in the primary judge’s rejection (PJ at [162]) of Mr Guss’ contention that his abuse of process arguments constituted “other sufficient cause” for the purposes of s 52(2)(b) of the Bankruptcy Act.

57    The primary judge plainly was not “satisfied by the debtor [Mr Guss]” that his abuse of process allegations constituted “sufficient cause” for a sequestration order not to be made, for the purposes of s 52(2)(b) of the Bankruptcy Act. There is no error established in her Honour’s conclusion on this matter.

Proposed Ground 3: adjournment of the proceedings

58    Before the primary judge, and once her Honour had ruled on the discovery application, Mr Guss made an oral application that the proceeding be adjourned. That oral application was made on the basis that Mr Guss wanted time to pursue an appeal of the rejection of his discovery application, and also on the basis that he was “a bit unwell”. Mr Guss also contended that Larkfield had not complied with r 4.05 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021 (Cth) (the FCFCoA Bankruptcy Rules).

59    As noted above, Mr Guss requires leave to amend his Notice of Appeal to pursue this ground of appeal. I would decline leave on the basis that the decision below is not attended with sufficient doubt to warrant its being reconsidered by this Court, and substantial injustice would not result if leave were refused, supposing the decision to be wrong: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398; [1991] FCA 655 at [2] (Sheppard, Burchett and Heerey JJ).

60    The primary judge addressed Mr Guss’ adjournment application in Part C of the primary judgment.

61    The primary judge set out the relevant legal principles governing applications for adjournments generally, and s 190 of the FCFCoA Act, which stipulates the “overarching purpose”, being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (PJ at [99]-[102]). The primary judge then set out the principles and provisions governing adjournment of creditors’ petitions in bankruptcy, including s 33(1)(a) of the Bankruptcy Act (PJ at [103]-[104]). There is no suggestion her Honour misstated the applicable legal principles and provisions.

62    The primary judge rejected the discovery application. The primary judge reasoned that, as the discovery application was interlocutory, Mr Guss would require leave to appeal and, given that reasons had not been given, it could not be said that Mr Guss had an arguable prospect of success on the appeal (PJ at [106]). The primary judge also referred (PJ at [107]) to the fact that no final determination had yet been made of Mr Guss’ review application in relation to the sequestration order and that Mr Guss would have a right of appeal if that application proved unsuccessful (which it has).

63    The primary judge also reasoned that a further adjournment would cause delay and prejudice, noting that the matter had been on foot for nearly a year and had been the subject of a number of previous adjournments (set out in her Honour’s summary of the background facts above), resulting in Larkfield having attended court, with counsel, on four previous occasions (PJ at [108]-[109]). Her Honour did not accept Mr Guss’ claim that he was “a bit unwell” warranted an adjournment, in light of: the lack of evidence concerning his medical condition; the history of previous, health-related adjournments; Mr Guss’ confirmation of his capacity to attend at the hearing that ultimately did proceed; and his knowledge, as a solicitor, that it is necessary to file appropriate evidence where an adjournment is sought on the grounds of ill-health (PJ at [110]).

64    As to the argument that Larkfield had not complied with r 4.05 of the FCFCoA Bankruptcy Rules due to late filing and service, the primary judge set out the relevant provisions and traced through the timing of the service of documents. Her Honour dismissed the suggestion that Larkfield had not complied with the relevant rules, as follows:

115    Rule 4.06(3) of the Bankruptcy Rules provides that the affidavit of search must be by a person who has no earlier than the day before the hearing searched the National Personal Insolvency Index (or caused such a search to be undertaken). Accordingly, in the present circumstances, this search could not have been undertaken prior to 26 March 2024. In those circumstances, I am unable to see how filing the affidavit of search on 26 March 2024 is “late” filing as asserted by Mr Guss. Further, it is clear that on a plain reading that the affidavit of search required to be filed under r 4.06(3) of the Bankruptcy Rules is in addition to, and separate from, the documents required to be served under r 4.05 of the Bankruptcy Rules and that it is only the latter documents that are required to be served 5 days before the hearing. In addition, as the search which is attested to under r 4.06(3) must not be earlier than the day before the hearing, it cannot be correct that the Bankruptcy Rules require service of that affidavit 5 days before the hearing.

116    Rule 4.06(4) of the Bankruptcy Rules provides that the affidavit of debt must be filed as soon as practicable before the hearing date. As set out above, the hearing date was 27 March 2024 and the affidavit of debt was filed on 26 March 2024. Accordingly, I am unable to see how this constitutes late filing. As with r 4.06(3), it is clear that on a plain reading that the affidavit of debt required to be filed under r 4.06(4) is in addition to, and separate from, the documents required to be served under r 4.05 and that it is only the latter documents that are required to be served 5 days before the hearing. In addition, as the affidavit under r 4.06(4) must be sworn as soon as practicable before the hearing, it cannot be correct that the Bankruptcy Rules require service of that affidavit 5 days before the hearing.

117    Finally, as to the assertion that a copy of the Trustee’s Consent to Act had not been served on Mr Guss, the evidence before the Court is that this document was served on Mr Guss by prepaid post and email on 10 August 2023, in accordance with the 8 August Orders.

(Original emphasis.)

65    The primary judge finally considered that there was no utility in granting an adjournment of the review application.

66    In his submissions on the appeal, Mr Guss contended that the primary judge erred in not granting the adjournment on the basis that:

(a)    the discovery he sought was important and no reasons had been given yet for dismissing the discovery application;

(b)    by not granting an adjournment, the primary judge materially affected, adversely, the conduct of his defence to the bankruptcy petition;

(c)    (as contended before the primary judge) Larkfield had failed to comply with r 4.05 of the FCFCoA Bankruptcy Rules, and Mr Guss was unwell during the hearing on 27 March 2024; and

(d)    the primary judge’s remark (PJ at [106]) that the basis of the application was simply that Mr Guss disagreed with her Honour’s rejection of his discovery application, and so he could not be shown to have good prospects of obtaining leave, was “disingenuous” as he could not provide detailed grounds to appeal the rejection of the discovery application in the running.

67    Determining whether to adjourn a hearing is quintessentially a matter of procedural case management, in which a court on appeal will be slow to interfere: Sali v SPC Ltd (1993) 116 ALR 625 at 632 (Toohey and Gaudron JJ). No error has been established in the primary judge’s approach, let alone an error of the kind referred to in House v R. On the contrary, the primary judge’s refusal to adjourn the hearing to allow Mr Guss to pursue an appeal against an interlocutory discovery decision is entirely orthodox. It was also a matter for the primary judge to assess Mr Guss’ claim to be unwell on the day in question, having already argued the discovery application. That is not to say that in all conceivable circumstances medical evidence must be provided. For example, a person might collapse in court or suffer an acute medical episode. But that is not this case, and there is no discernible error in her Honour’s rejection of the suggestion Mr Guss’ health was in such a parlous state that he could not fairly continue with the balance of his application.

68    Insofar as the adjournment application was based on an asserted non-compliance with r 4.05 of the FCFCoA Bankruptcy Rules, Mr Guss has not identified any error in the primary judge’s reasons for rejecting Mr Guss’ submission that Larkfield failed to comply with this rule. On appeal, Mr Guss did not dispute the primary judge’s findings that:

(a)    the affidavits of search and debt required by r 4.06 are not required to be filed at least 5 days before the hearing of the creditor’s petition; and

(b)    the consent to act as a trustee that Mr Guss had asserted was not served was in fact properly served on Mr Guss on 10 August 2023.

69    However, Mr Guss reiterated his submission that “a proper reading [of r 4.05] requires service of the documents described therein 5 days prior to the hearing”. Mr Guss was not able to tell me which of the documents required to be served under r 4.05 he claims was not served within the timeframe stipulated in that rule. Counsel for Larkfield submitted that all such documents were properly served, as evidenced by an affidavit of service dated 8 September 2023. That affidavit served each of the documents referred to in r 4.05(a)-(d). Accordingly, I am unable to see any error in the primary judge’s rejection of Mr Guss’ submission that Larkfield failed to comply with the FCFCoA Bankruptcy Rules.

70    For the foregoing reasons, the decision below is not attended with sufficient doubt to warrant the grant of leave to amend the Notice of Appeal. Even if leave were granted (or not required, for any reason) the ground of appeal would fail. I also refuse leave on the basis that it has not been established that, if the decision below was wrong, Mr Guss would suffer substantial injustice as a result. Refusal of the adjournment required Mr Guss to proceed with the hearing. The fact that he was unsuccessful before the primary judge on the substantive issues does not establish substantial injustice.

Proposed Ground 4: the application for an extension of time to comply with the Bankruptcy Notice

71    As explained above, the oral application for an extension of time is not encompassed within the existing grounds of appeal. Leave is required for Mr Guss to amend to pursue this ground of appeal. I would refuse leave on the basis that the decision below is not attended with sufficient doubt to warrant the grant of leave. However, if that were not so, I would be satisfied that Mr Guss would suffer substantial injustice if the decision were wrong because, if he should have had an extension of time, he would not have committed an act of bankruptcy by failing to comply with the Bankruptcy Notice.

72    Section 41(6A) of the Bankruptcy Act provides that:

Where, before the expiration of the time fixed for compliance with a bankruptcy notice:

(a)     proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

(b)     an application has been made to the Court to set aside the bankruptcy notice;

the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

73    Before the primary judge, Mr Guss’ argument was that Streimer v Tamas (1981) 37 ALR 211; [1981] FCA 140 (Streimer) is authority for the proposition that an extension of time for compliance with a bankruptcy notice can be granted after the time for compliance has expired (PJ at [139]). That submission, which Mr Guss again advanced on the appeal, is correct, as far as it goes, but overlooks that such an extension can only be granted after the time for compliance with the bankruptcy notice has expired where the proceeding to set aside the judgment debt or order on which the bankruptcy notice rests, or the application that has been made to set aside the bankruptcy notice, is still on foot. Once any proceedings to set aside the judgment or order, and the application to set aside the bankruptcy notice, have been finally determined, then s 41(6A) is spent. I will return to the case law that makes this clear, but first address the primary judge’s reasons for rejecting the extension of time application.

74    The primary judge considered that, the application for an extension of time having been made too late, the FCFCoA did not have jurisdiction to make the orders sought. Her Honour reasoned as follows (PJ at [141]-[143]):

141    Streimer, and other cases which have considered it, were analysed by Gummow J in Re: Roland Bleyer Ex Parte: TCN Channel 9 Pty Limited [1993] FCA 117, where his Honour said of Streimer “in that case, the application under the section had been instituted during the currency of the bankruptcy notice although it had not been disposed of until after the period had expired.”

142    In the present case:

•    the time for compliance with the Bankruptcy Notice was 5 April 2023;

•    on 5 April 2023, Mr Guss applied for, and failed to secure, an extension of time for compliance with the Bankruptcy Notice before the FCFCOA;

•    the Bankruptcy Notice expired at the time of delivery of the FCFCOA Decision;

•    in the appeal of the FCFCOA Decision to the Federal Court, Mr Guss sought a fresh extension of time for compliance. Her Honour declined to grant an extension finding that the appeal to the Federal Court had not been filed until 13 April 2023 and therefore did not satisfy the pre-requisite to making such an order that the proceeding be instituted “before the expiration of the time fixed for compliance with the bankruptcy notice: see, eg, Re Riordan; Ex parte Riordan v Direct Acceptance Corp Ltd (1995) 63 FCR 147 at 148-149 (Foster J).”; and

•    the current oral application has been made almost 12 months after the time for compliance with the Bankruptcy Notice expired.

143    In those circumstances, I do not consider that this Court has jurisdiction to make the orders sought, or that Streimer stands for the propositions advanced by Mr Guss. However, even if that be wrong, I would decline to grant an extension of time as sought. Mr Guss has not provided any reasons why I should depart from the primary judge in the FCFCOA Decision or from her Honour in the Federal Court Decision in declining to extend the time for compliance with the Bankruptcy Notice.

75    Mr Guss’ submissions on the extension of time assert that the primary judge erred. Mr Guss contended that the primary judge misconstrued Streimer, and, in his oral submissions, that the primary judge misconceived the course of events before the Federal Court in Guss BN (referred to in the fourth bullet point of the primary judge’s reasons at [142]). As to that point, Mr Guss submitted:

It [the fourth bullet point of PJ at [142]] is saying that her Honour declined to grant an extension, finding that the appeal to the Federal Court had not been filed until 13 April and, therefore, did not satisfy the prerequisite of making the oral application before. Now, that’s a misconception because it had nothing to do with the filing of the appeal from the order. What we say is that, or I say, is that, as shown by the authorities, which I will take your Honour to, the court’s jurisdiction is enlivened by the application to extend the time for compliance. That’s the first one. So the bankruptcy notice is served and then an application is made to set it aside. That persisted until 5 April 2023, various extensions and the question that the appeal from Judge Forbes was not filed until 13 April – that’s a decision of 5 April 2023 – is irrelevant. It has got nothing to do with that at all. It goes back to the question whether the court has got power to extend the time, notwithstanding that the – in the circumstances that I’ve said, notwithstanding that it expired – expired – it had expired on the evening of the 5th of – 12 o’clock on 5 April. The petition was issued on 6 April. Judge Forbes had declined to deal with an extension on 5 April when he handed down his judgment. There was an appeal from it.

76    Mr Guss’ submissions do not have merit.

77    In Streimer, an appeal against the underlying judgment was on foot, and the debtor made an application to extend the time for compliance with the bankruptcy notice. That application had been made before the time for compliance with the bankruptcy notice expired. The judge made orders extending time, but adjourned the hearing of the application to set aside the bankruptcy notice so that the hearing of the application was to be held on the last day of the extension, with an application that had been made by the creditor to set aside the extension order. Through an oversight, those hearings were adjourned without it being noticed that an order for a further extension was required, in order for there not to be an act of bankruptcy once the extension expired overnight. Once the oversight had been identified, the primary judge made another order extending time, but by then an act of bankruptcy had occurred. The Full Court (Deane and Ellicott JJ) considered that the fact that an act of bankruptcy had occurred, did not mean that the court could not grant a further extension.

78    In Lamb v Sherman (2023) 298 FCR 79; [2023] FCAFC 85, the Full Court at [51] (Rares, Rofe and Downes JJ) confirmed Streimer: “the jurisdiction of the Court to make an order extending time exists if, and only if, an application has been made before the time fixed for compliance of the bankruptcy notice, as had occurred in Streimer”. The Full Court also observed (at [52]) that Streimer has stood for over 41 years and had been referred to with approval by the High Court in Guss v Johnstone (2000) 171 ALR 598 at 610–611; [2000] HCA 26 at [63] (Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ).

79    Larkfield’s argument, on the appeal, was that as Mr Guss had challenged the Bankruptcy Notice through the earlier proceedings, and that challenge had been run and conclusively lost (once the special leave application was rejected), s 41(6A) was not available to provide power for the primary judge to extend time for compliance with the Bankruptcy Notice.

80    Larkfield relied on the following passage from McQuade PP and Gronow MGR, Australian Bankruptcy Law and Practice (Thomson Reuters, subscription service) at [41.6A.15]:

A proceeding to set aside the judgment or an application to set aside the bankruptcy notice will not satisfy the prerequisites in s 41(6A)(a) and (b), if the proceeding or application has been dismissed or otherwise ceased to exist as a current proceeding when the time for compliance with the bankruptcy notice expires: Re Udowenko; Ex parte Mitchell (1996) 69 FCR 299 at 304 (Lindgren J); McLean v ANZ Banking Group Ltd (1993) 42 FCR 300 at 305 (Ryan J); Rixon v Bryett (2001) 112 FCR 295; [2001] FCA 963 at 298 (FCR), 298 (FCA) (Moore J); Dudzinski v Kellow [2002] FCA 665 at [19] – [20]. It is accordingly not sufficient to satisfy the prerequisites, merely to show that at some point prior to the expiry of time for compliance such a proceeding or application was commenced; it must still be on foot: McLean v ANZ Banking Group Ltd (1993) 42 FCR 300 at 303, 304–305; Shephard v Chiquita Brands (South Pacific) Ltd (2004) 1 ABC(NS) 610; [2004] FCAFC 76 at [36] – [40], [49] – [54], [60] (Hill, Sackville and Marshall JJ). On the other hand, where the time for compliance has been validly extended under s 41(6A) until a certain time on a particular day to allow determination of an application to set the bankruptcy notice aside, the debtor still has until that time to comply with the bankruptcy notice. While the extension order remains in force the debtor will not have committed an act of bankruptcy by failing to comply until expiry of the extended time, notwithstanding the earlier dismissal of the application to set aside the bankruptcy notice: Layton v Westpac Banking Corp (2000) 181 ALR 603; [2000] FCA 1752 at 605–606 (ALR), [14] – [15] (Cooper J), citing Re Udowenko; Ex parte Mitchell (1996) 69 FCR 299 at 301, 303–304 (Lindgren J).

(Emphasis added.)

81    Counsel for Larkfield referred to Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76 (Shephard) as authority for the proposition that it is not sufficient, for the purposes of s 41(6A)(b), that an application was commenced at some point prior to the expiry of time for compliance; rather, the relevant application must still be on foot.

82    In Shephard, Hill and Marshall JJ considered the context and purpose of s 41(6A) (at [40]):

Clearly s 41(6A) was intended to be in aid of the application to set aside the judgment or the bankruptcy notice as the case may be. In that context it seems strange that the legislature would intend that so long as at any time in the past there had been an application to set aside a judgment or a bankruptcy notice, and notwithstanding that such application had been determined and even notwithstanding that the time for compliance had long passed the court would have power to extend the time for compliance. Once the application to set aside the judgment or the bankruptcy notice has been finally determined … there is no aid which the power to extend time for compliance can give to the determined application. It follows, in our view, that the power to extend time for compliance has been spent. The use of the perfect tense “have been instituted” and “have been filed” is, of itself, not determinative … Ultimately it is the context of s 41(6A) rather than matters of syntax which lead to the conclusion that the power to extend time under the section is spent once the application to set aside the bankruptcy notice has been disposed of.

(Emphasis added.)

83    Mr Guss relied on Sackville J’s reasons in Shepard, which state (at [47]) that the power in s 41(6A) can be exercised after an act of bankruptcy, citing Streimer. However, this does not assist Mr Guss to establish that the power can be exercised after the application to set aside the relevant bankruptcy notice has been finally determined. On the contrary, Sackville J explicitly noted that Streimer is not to be read as authority for any such power (at [49]):

The fact that the power in s 41(6A) of the Act can be exercised after an act of bankruptcy does not necessarily mean that the power can be exercised after the proceedings to set aside the bankruptcy notice have been determined. That issue did not arise in Streimer v Tamas. There the application to extend time was made before the proceedings had been concluded (although after the debtor had committed an act of bankruptcy).

(Original emphasis.)

84    Accordingly, Mr Guss has not established any error in the primary judge’s finding that the FCFCoA lacked jurisdiction to grant an extension of time for compliance in circumstances where Mr Guss’ application to set aside the Bankruptcy Notice had been finally determined, the High Court special leave application in respect of Guss BN having been refused on 7 March 2024. It is not to the point whether the primary judge misunderstood (as Mr Guss suggested) the course of events before the Federal Court, as referred to in the fourth bullet point of the primary judgment at [142].

85    Mr Guss’ submissions concerning the primary judge’s alternate grounds (referred to in the primary judgment at [143]) do not require determination as the primary judge was correct to conclude that the court lacked power to extend time for compliance with the Bankruptcy Notice.

86    In the absence of any credible error in the primary judge’s conclusion that the s 41(6A) power was not available, I consider leave to amend should be refused. If leave is not required for any reason, or ought to have been granted, I would dismiss this ground of appeal.

Conclusion

87    The appeal will be dismissed with costs.

Associate:

Dated:    4 April 2025