Federal Court of Australia

Sanna v Trustee of the Property of Sanna (Bankrupt) [2026] FCA 1046

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal, in the form of the proposed amended notice of appeal dated 23 June 2026, is refused.

2.    The time for compliance with order 6 of the Orders of Registrar Rubinstein dated 18 May 2026 (Orders) (the appellant file and serve on the respondent an outline of submissions and chronology of the relevant events) be varied from 20 business days before the hearing to 15 business days before the hearing.

3.    The time for compliance with order 7 of the Orders (the respondent file and serve on the appellant an outline of submissions, a chronology of the relevant events and a list of materials to be included in Part C of the appeal book) be varied from 15 business days before the hearing to 10 business days before the hearing.

4.    The time for compliance with order 8 of the Orders (the appellant file and serve on the respondent any submissions in reply) be varied from 10 business days before the hearing to 5 business days before the hearing.

5.    The time for compliance with order 9 of the Orders (the appellant file and serve on the respondent Part C of the appeal book in electronic format) be varied from 10 business days before the hearing to 5 business days before the hearing.

6.    The time for compliance with order 10 of the Orders (the appellant serve on the respondent a list of authorities and a list of any legislation to which the party intends to refer) be varied from 10 business days before the hearing to 5 business days before the hearing.

7.    The time for compliance with order 11 of the Orders (the respondent serve on the appellant a list of authorities and a list of any legislation to which the party intends to refer) be varied from 9 business days before the hearing to 4 business days before the hearing.

8.    Costs reserved.

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)

DOWLING J

1    The appellant, Ms Lepa Sanna, appeals from a decision of a judge of this Court in Weston (Trustee) v Sanna (No 7) [2025] FCA 1205. Ms Sanna’s notice of appeal was filed on 28 October 2025. The appeal is listed to be heard on 18 August 2026.

2    Ms Sanna now seeks leave to amend her notice of appeal. She relies on a proposed amended notice of appeal filed on 24 June 2026. These reasons deal with that leave to amend.

3    For the reasons explained below, leave is refused.

Background and summary

4    By Sanna (No 7) the primary judge dealt with applications arising from three proceedings. Two of the proceedings were commenced in the Supreme Court of New South Wales. One of those was determined by the Supreme Court prior to its transfer to this Court: see Wyse & Young International Pty Ltd v Sanna [2019] NSWSC 683 and Wyse & Young International Pty Ltd v Sanna (No 2) [2019] NSWSC 868.

5    In Sanna (No 7), the primary judge determined the applications made by several parties who claimed an entitlement to the balance of the proceeds of sale of two properties, the Green Valley property and the Copacabana property. One of the applications was brought by the Trustee of the Bankrupt Estate of Lepa Sanna. The Trustee sought approval for the disbursement of funds held in his solicitors’ trust account in accordance with a Deed of Settlement, to parties who claimed an interest in the funds as secured creditors. Relevantly, the primary judge found that Ms Sanna had not established an entitlement to a share in the net proceeds of sale of the two properties. The primary judge made orders approving the proposed distribution of the proceeds of sale of the Green Valley and Copacabana properties, in accordance with the Deed of Settlement.

6    The notice of appeal filed on 28 October 2025 raised 13 grounds of appeal in respect of Sanna (No 7).

7    On 18 May 2026, a Registrar made orders by consent timetabling the appeal. The orders also provided:

The appellant file and serve any interlocutory application for leave to rely on further evidence and to join additional respondents, together with supporting affidavit and annexures, no later than 8 weeks prior to the hearing.

8    On 24 June 2026, Ms Sanna filed an application for leave to amend her notice of appeal. The grounds of appeal in the proposed amended notice of appeal removes the 13 grounds from the notice of appeal filed on 28 October 2025 and proposes the following three grounds:

(1)    The judgment under appeal was based on the judgment of the (NSW) Supreme Court of 3 July 2019 in Wyse & Young International Pty Limited v Sanna [2019] NSWSC 868 (WYI v Sanna No.2) that is the result of the judgment in Wyse & Young International Pty Limited v Sanna [2019] NSWSC 683 (WYI v Sanna No.1) of 7 June 2019 that is obtained by breach of trust and fraud that caused serious error of fact.

(2)    If the orders under appeal are executed, the appellant will suffer significant loss without [sic] little, if any, remedy available to correct the gross injustice.

(3)    The orders under appeal have not taken into account the direction that the same Court gave in an earlier proceeding, that the Trustee must pay the amount of $818,000 to Mr Sanna (Weston v Sanna) [2019] FCA 32 of 24 January 2019 (at [138]); such payment had never been made by the Trustee or on his behalf.

9    In an affidavit filed in support of the proposed notice of appeal, Ms Sanna deposes that she has identified information which she believes raises serious questions about whether material facts relevant to the proceeding before the Supreme Court were disclosed to the Court. Ms Sanna deposes that she intends to seek leave to appeal Wyse & Young.

10    The respondent opposes the grant of leave to amend the notice of appeal for the following reasons:

(1)    the proposed notice fails to join several parties who will be affected by the relief sought;

(2)    properly understood the proposed notice contains only one ground of appeal and that ground relates to a matter which was not in issue in the Court below and otherwise has no reasonable prospect of success; and

(3)    to the extent that the proposed notice relies on fraud, that fraud is inadequately particularised and the causal connection with the judgment appealed from has not been established.

11    As explained, the appeal is listed for hearing before the Full Court on 18 August 2026.

Material relied upon

12    At the hearing, Ms Sanna relied on the following material:

(1)    her outline of submissions dated 24 June 2026;

(2)    her outline of submissions in reply dated 14 July 2026; and

(3)    the affidavit of Mr Corrado Sanna dated 14 July 2026.

13    The affidavit of Mr Sanna was tendered without objection.

14    The respondent relied on the following material:

(1)    the affidavit of Ms Joanna Yu dated 10 July 2026;

(2)    the affidavit of Mr Paul Gerard Weston dated 18 July 2025; and

(3)    the respondent’s outline of submissions dated 10 July 2026.

15    The affidavits of Ms Yu and Mr Weston and the relevant annexures and exhibits were tendered without objection.

Principles for amendment

16    Rule 36.10 of the Federal Court Rules 2011 (Cth) provides that an appellant may, without leave, amend a notice of appeal during the period of 28 days after filing the notice of appeal. Given that Ms Sanna seeks to amend her notice of appeal after the expiry of that 28-day period, leave is required.

17    A party seeking leave to amend a notice of appeal bears the onus of satisfying the Court that grounds exist for exercising the discretion in her favour: see BRU15 v Minister for Immigration and Border Protection [2018] FCA 453 at [21] (Gleeson J), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 (Toohey and Gummow JJ).

18    The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in controversy are properly agitated and to avoid a multiplicity of proceedings: Caason Investments Pty Ltd v Cao [2015] FCAFC 94; 236 FCR 322 at [20] (Gilmour and Foster JJ) citing Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 at [14] (French CJ) (citing Dwyer v O’Mullen (1887) 13 VLR 933 at 939-940 (Higinbotham CJ)).

19    The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: see s 37M(3) of the Federal Court of Australia Act 1976 (Cth).

20    Leave to amend will not be granted where a proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs: see Caason Investments at [21] (Gilmour and Foster JJ) and the cases cited.

Consideration

Proposed ground three

21    As identified, proposed ground three of the proposed notice of appeal complains that the orders made by the primary judge did not take into account her determination in her earlier judgment, Weston (Trustee) v Sanna [2019] FCA 32, that the Trustee must pay the amount of $818,000 to Mr Sanna.

22    That earlier judgment, Sanna [2019] FCA 32, concerned the Copacabana and Green Valley properties. At [2] her Honour explained:

By transfer registered no AH755747 dated 8 May 2013 for consideration of $1.00 (Copacabana Transfer), Lepa Sanna transferred the Copacabana Property to her estranged husband, Corrado Sanna, the respondent. By unregistered transfer signed by Mrs Sanna in favour of Mr Sanna as transferee, Mrs Sanna transferred her half share interest in the Green Valley Property to Mr Sanna for consideration of $1.00 (Green Valley Transfer). After making those transfers, on 10 December 2013 Mrs Sanna became a bankrupt. The applicant, Paul Gerard Weston, is the trustee of her bankrupt estate (Trustee).

23    At [138] of the earlier judgment, her Honour determined:

Accordingly, in my opinion, for the purpose of s 121(5) of the Act Mr Sanna has established that he gave consideration of $818,000 for the Copacabana Transfer. The Trustee must pay that amount to Mr Sanna.

24    At [5] of the judgment under appeal, Sanna (No 7), the primary judge expressly referred to her earlier findings in Sanna [2019] FCA 32 and explained:

I found that pursuant to s 121(1) of the Bankruptcy Act 1966 (Cth) the Copacabana Transfer and the Green Valley Transfer were each void against the Trustee and that declarations should be made to that effect: Weston v Sanna at [132] and [151]. I also made the following findings in Weston v Sanna:

(1) for the purpose of s 121(5) of the Bankruptcy Act, Mr Sanna gave consideration of $818,000 for the Copacabana Transfer: at [138];

(2) for the purpose of s 121(5) of the Bankruptcy Act, Mr Sanna gave consideration of $184,875.15 for the Green Valley Transfer: at [153]-[154];

25    The respondent submits, and I accept on the basis of the material before me, that at the hearing of the matter under appeal, there was no dispute before her Honour about that earlier finding or about the Trustee’s obligations pursuant to s 121(5) of the Bankruptcy Act. That is, there was no dispute that for the purposes of s 121(5), Mr Sanna had established that he gave consideration of $818,000 for the Copacabana Transfer, or that the Trustee was to pay that amount to Mr Sanna.

26    The primary judge expressly referred to her earlier finding, and the parties proceeded on the basis that it was correct. There can be no suggestion that there was a failure to take into account that finding.

27    Further, and in any event, at [18] of the judgment under appeal her Honour explained:

the Court has made a number of further orders in the Transfer Proceeding including relevantly:

(1) on 15 June 2020 orders empowering Mr Weston to sell the Copacabana property and appointing Mr Weston and Ragu Nith as trustees pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the sale of the Green Valley property. The Properties were subsequently sold and the sales completed on 8 July 2021. On settlement of the Copacabana property a debt of $1,103,440.36 owed by Mr Sanna to St George Bank and secured by a mortgage over the Copacabana property was paid out from the proceeds of sale, thereby satisfying the requirement that the Trustee repay the consideration paid by Mr Sanna for the Copacabana Transfer.

(Emphasis added.)

28    In other words, her Honour made clear that the payment by the Trustee of $1,103,440.36 to the St George Bank in July 2021, satisfied the Trustee’s obligation to pay to Mr Sanna the amount of $818,000 for the Copacabana Transfer.

29    Proposed ground three, alleging that the primary judge did not take into account her earlier finding that the Trustee must pay the amount of $818,000 to Mr Sanna, has no prospects of success. There would be no utility in granting leave for that amendment.

Proposed grounds one and two

30    Proposed ground one complains that the judgment under appeal was based on the judgment of the Supreme Court in Wyse & Young (No 2) which itself was the result of the judgment in Wyse & Young. Ms Sanna complains that the judgment in Wyse & Young was “obtained by breach of trust and fraud”.

31    Proposed ground one does not identify any appellable error made by the primary judge in the judgment the subject of the appeal. Absent any successful appeal from those earlier Supreme Court decisions, it was entirely proper of her Honour to proceed on the basis of their correctness. Proposed ground one has no prospects of success and there would be no utility in granting leave for that amendment.

32    Proposed ground two complains that “if the orders under appeal are executed, the appellant will suffer significant loss without [sic] little, if any, remedy available to correct the gross injustice.” Proposed ground two does not clearly identify an error of the primary judge. Rather, it appears to identify the consequences of the orders under appeal. The injustice about which it complains appears to stem from the fraud alleged in respect of the earlier Supreme Court judgments identified by proposed ground one. For the reasons explained, proposed ground one has no prospects of success. Proposed ground two has no prospects of success and there would be no utility in granting leave for that amendment.

The Trustee’s further complaints about the proposed grounds

33    As explained, the Trustee further complains that the proposed notice of appeal:

(1)    fails to join several parties who will be affected by the relief sought; and

(2)    to the extent that it relies on fraud, that fraud is inadequately particularised and the causal connection with the judgment appealed from has not been established.

34    As to (1), the Trustee says that the obligation to join each party that may be affected arises by operation of the Registrar’s order set out at [7] above and r 36.31 of the Federal Court Rules. That rule provides that each party to the proceeding in the court appealed from who may be affected by the relief sought in a notice of appeal, or who might be interested in maintaining the judgment under appeal, must be joined as an appellant or respondent to the appeal. He complains that parties affected include the fourth, ninth, tenth, eleventh and twelfth respondents in Sanna (No 7) and that none were joined in accordance with the order or rule.

35    As to (2), the Trustee complains that there is nothing in the proposed notice of appeal, or otherwise in the material relied upon by Ms Sanna, to particularise the fraud alleged by proposed ground one or to establish the causal connection with the judgment the subject of the appeal.

36    I accept both of those criticisms. They provide further reasons why leave to amend should not be granted. However, where I have already determined leave would be refused on the basis of the lack of prospects of success of any of the proposed grounds it is not necessary for me to address them further.

Disposition

37    Leave to amend the notice of appeal is refused.

38    Under the current timetable, the appellant is due to file and serve her outline of submissions and a chronology 20 business days before the hearing. I understand that deadline falls on or about 21 July 2026. Given the parties have spent time filing submissions and preparing for this hearing in relation to the proposed amendment to the notice of appeal, it is appropriate to make orders extending that date by one week to ensure that the appellant has sufficient time to comply with that order in respect of which she is to file submissions pursuant to her notice of appeal dated 28 October 2025.

39    I propose to also make consequential orders extending the time for the respondent’s submissions and chronology and list of materials to be included in Part C of the Appeal Book (or what is now identified as “Part 2” of the Appeal Book), the appellant’s submissions in reply, filing Part C (or Part 2) of the Appeal Book, and the respective lists of authorities and legislation.

Associate:

Dated:    31 July 2026