Federal Court of Australia

Domino v Allen (Liquidator), in the matter of Domino [2026] FCA 544

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first and second respondents’ costs of and incidental to the appeal, including the costs reserved by paragraph 6 of the orders made on 2 April 2026, fixed in the sum of $7,254.00.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

MCEVOY J:

1    By a notice of appeal dated 16 March 2026 the appellant, Emma Christine Domino, appeals from orders made by the primary judge in Domino v Allen (Liquidator), in the matter of Domino [2026] FedCFamC2G 428 on 13 March 2026.

2    Before the primary judge the appellant had made an application to set aside a bankruptcy notice or, alternatively, to extend the time for compliance with the bankruptcy notice beyond 19 March 2026. The primary judge dismissed the appellant’s application.

3    The bankruptcy notice arises from costs orders made by Attiwill J in the Supreme Court of Victoria. The underlying proceeding was an application for an injunction made by the appellant against various parties, including the creditors who are the present respondents, and that application was refused. Attiwill J then made cost orders in the sum of $17,480 against the appellant and in favour of the creditors. The creditors are the liquidators of Torbeckin Pty Ltd (in liquidation) (Torbeckin). The appellant was a director and the shareholder of Torbeckin.

4    The appellant’s position before the primary judge, in substance, was that she wanted to set aside the bankruptcy notice or extend time for compliance with it until her application in the Supreme Court for a stay of Attiwill J’s costs orders was heard and determined. At that time the appellant had not received any indication from the Supreme Court as to when her stay application would be heard, nor any indication of when the Court of Appeal would hear her application for leave to appeal from Attiwill J’s orders.

5    The primary judge was not persuaded that there was a proper basis to set aside the bankruptcy notice, or extend the time for compliance with it. Her Honour considered that the appellant had little prospect of persuading the Court of Appeal to overturn the costs order, and that the appellant had delayed for too long, possibly tactically, seeking a stay of the costs order. The primary judge also regarded it as significant that the point had not yet arrived where refusing to extend the time for the bankruptcy notice would result in the appellant’s bankruptcy. The creditor’s petition stage had not yet been reached and, to quote her Honour, “[t]hings are not as dramatic as they would be at that point.” The primary judge took the view that if the bankruptcy notice was not set aside there would still be time for the appellant’s stay application to be heard and determined prior to the creditor’s petition being heard and determined.

6    By her notice of appeal the appellant seeks to have the orders of the primary judge set aside and, in lieu, orders that her application to set aside the bankruptcy notice be adjourned to a date to be fixed after the Supreme Court has determined her application for a stay of the orders made by Attiwill J. This course was initially resisted by the respondent creditors.

7    By the time the appeal came on for hearing on 2 April 2026, however, the appellant had been informed by the Court of Appeal that the oral hearing of her stay application and her application for leave to appeal had been listed for hearing on 20 April 2026. In these circumstances the appellant sought to have the appeal adjourned until a week or so after 20 April 2026. The appellant conceded that if the Court of Appeal heard and dismissed those two applications, then the basis of her application to set aside the bankruptcy notice before the primary judge would fall away.

8    The respondent creditors ultimately agreed that the sensible course was to adjourn the hearing of the appeal until 1 May 2026, more than a week after the Court of Appeal would have heard the appellant’s stay application and her application for leave to appeal, and to extend the time for compliance with the bankruptcy notice to 5:00pm on 1 May 2026. On this basis, I made orders to this effect.

9    On 20 April 2026, the Court of Appeal (Richards JA) dismissed the appellant’s application for a stay of the costs orders made by Attiwill J, and her application for leave to appeal from those costs orders.

10    By reason of the dismissal of her applications by the Court of Appeal, the entire premise of the appellant’s application before the primary judge to set aside the bankruptcy notice or extend the time for compliance with it has fallen away. Even were it to be accepted, as the appellant has contended on the appeal, that the primary judge denied the appellant procedural fairness by determining the matter after the respondents had filed and served written submissions shortly before the hearing on 13 March 2026 without affording the appellant sufficient opportunity to consider and respond to those submissions, nothing would turn on such a failure.

11    Recognising that the purpose of the appeal is the correction of error, it is the duty of the court to decide for itself whether in light of the claimed errors the primary judge’s conclusion was correct: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [56] (Gageler J); Minister for Immigration and Citizenship v AMU19 [2026] FCAFC 29 at [35] (Wheelahan, Meagher and McDonald JJ).

12    Having regard to the Court of Appeal’s dismissal of the appellant’s stay application and her application for leave to appeal, the appellant’s application before the primary judge is without foundation. The appellant effectively conceded at the hearing on 2 April 2026 that this would be so if the Court of Appeal dismissed her applications. It was on this basis that I granted the adjournment. It must follow that the decision of the primary judge to dismiss the application to set aside the bankruptcy notice was correct. I reject the appellant’s submission this morning that her appeal has been misunderstood, and that it is not, now, hopeless. The appeal must therefore be dismissed with costs.

13    Insofar as the quantum of the respondents’ costs is concerned, the respondents seek an order that the appellant pay their costs of and incidental to the appeal, including the costs reserved by paragraph 6 of the orders made on 2 April 2026, fixed in the sum of $7,254.00. The respondents have provided a short form bill of costs dated 27 April 2026 in the amount of $7,254.00. I consider that this bill is modest and reasonable, and indeed that it might be higher on a taxation. I am satisfied on this basis that the respondents should have their costs in this amount, and there will be an order to this effect.

14    I note, for completeness, that contrary to her position on 2 April 2026 the appellant continues to press for the orders made by the primary judge to be set aside, together with other consequential orders and certain additional orders. She also seeks to rely on the affidavit of Mr Jeremy Stanley Rowell affirmed on 30 April 2026 which seeks to agitate further aspects of the appellant’s dispute (and Mr Rowell’s dispute) with the liquidators of Torbeckin. For the reasons I have stated there is no basis for orders to be made in the terms the appellant seeks, nor any reason to grant the appellant leave to rely on the affidavit of Mr Rowell.

Associate:

Dated:    4 May 2026