Federal Court of Australia

Rowell v Michell (Trustee) [2026] FCA 1559

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time be dismissed.

2.    The applicant pay the second respondent’s costs of the application.

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

REASONS FOR JUDGMENT

O’CALLAGHAN j:

1    The applicant, Mr Rowell, applied for an extension of time within which to bring an appeal against a decision of a judge of the Federal Circuit and Family Court of Australia (FCFCOA) dismissing his application seeking annulment of his bankruptcy pursuant to s 153B(1) of the Bankruptcy Act 1966 (Cth).

2    He requires an extension of time, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), because he filed the notice of appeal six days late.

3    In those circumstances, as the second respondent agreed, the critical question is whether the contemplated appeal has any merit – that is, has the applicant demonstrated any appealable error affecting the decision of the primary judge not to annul his bankruptcy in accordance with the principle in House v The King (1936) 55 CLR 499.

4    He has not.

5    On the contrary, his appeal is wholly unmeritorious and impermissibly seeks to re-hash arguments properly rejected by the primary judge. An appeal of this type is not an occasion for the applicant “to re-agitate arguments that were rejected in the sequestration proceedings, or other proceedings in which he has been unsuccessful against the respondents, so as to have this Court determine the issues afresh in his favour”: see Shaw v Yarranova Pty Ltd (2017) 252 FCR 267 at 271 [13].

6    The following summary is derived from the careful and thorough reasons of the learned primary judge in Rowell v Michell (Trustee), in the matter of Rowell (Bankrupt) [2026] FedCFamC2G 448.

7    On 24 October 2025, an order was made by a Registrar of the FCFCOA, in proceeding MLG 2426 of 2025, sequestrating Mr Rowell’s estate.

8    The petitioning creditors were Mr Innis Anthony Cull and Mr Paul Anthony Allen as joint and several liquidators of Torbeckin Pty Ltd (in liq), a company of which Mr Rowell is a director.

9    The Official Trustee in Bankruptcy was appointed as the trustee for Mr Rowell’s estate.

10    In early December 2025, the responsibility for the administration of the estate was transferred to Mr Stephen Michell of PCI Partners. Mr Michell, in his capacity as trustee, is the first respondent to this application. He filed a submitting notice. The liquidators are the second respondents.

11    Mr Rowell sought an order from the FCFCOA, pursuant to s 153B(1) of the Bankruptcy Act, that his bankruptcy be annulled.

12    He contends that the sequestration order should never have been made.

13    At its core, his case was that the debts which supported the making of the sequestration order have already been paid such that they could not have supported the making of the order.

14    Before further addressing the reasons of the primary judge, it is useful to outline additional relevant background.

15    Torbeckin was established in 1984 by Mr Rodney Rowell (the applicant’s father).

16    Mr Rodney Rowell was the sole director until 17 May 2022, when the applicant was appointed a director. On 25 July 2022, the applicant’s partner, Ms Emma Domino, was also registered as a director.

17    On 6 December 2023, Torbeckin was wound up by order of the Supreme Court of Victoria on the application of one of its creditors.

18    Mr Cull and Mr Bradd were initially appointed joint and several liquidators of Torbeckin.

19    On 6 September 2024, Mr Allen was appointed as a joint and several liquidator of Torbeckin when Mr Bradd’s appointment ceased.

20    The principal asset of Torbeckin is land and a building located at 392 Victoria Street, Richmond, Victoria. It is encumbered by a first registered mortgage held by Secure Funding Pty Ltd.

21    In May 2023, Torbeckin defaulted on the mortgage.

22    Secure Funding was, at the time of the hearing before the primary judge, owed in the vicinity of $3.3 million. At the hearing, Mr Rowell told me that the figure is now “to the tune of $3.7 million”.

23    As the primary judge said in her reasons, the circumstances of the default, and in particular, who should be held responsible, is a matter that has been mired in controversy:

and generated significant litigation between Mr Rowell, Ms Domino and Mr Rowell’s father, as well as related litigation, much of which has been commenced in the Supreme Court of Victoria. Mr Rowell, Torbeckin and the Liquidators are parties to, or otherwise involved in, at least four proceedings in the Supreme Court, including the Secure Funding Proceeding (S ECI 2023 02679) by which Secure Funding sought orders for possession of the Richmond Property and the Torbeckin Proceeding (S ECI 2024 03825) by which Mr Rowell sought production of information and documents in connection with the liquidation.

24    The issues before her Honour arose from demands made by the liquidators that Mr Rowell pay them six separate costs orders that were incurred in various of the Supreme Court proceedings and a proceeding in the FCFCOA.

25    The total value of the costs orders is $81,710 which comprises:

•    $21,450 by order made on 4 October 2024 in the Secure Funding Proceeding;

•    $7,550 by order made on 7 February 2025 in the Secure Funding Proceeding;

•    $18,670 by order made on 14 March 2025 in the Torbeckin Proceeding;

•    $8,550 on 19 May 2025 in the Torbeckin Proceeding;

•    $6,900 on 20 May 2025 in the Secure Funding Proceeding; and

•    $18,590 on 10 July 2025 in the FCFCOA proceeding, MLG 1424 of 2025.

26    The liquidators caused a bankruptcy notice to be issued to Mr Rowell on 16 April 2025, relying on those unpaid costs orders.

27    Mr Rowell’s application to have the bankruptcy notice set aside was dismissed on 10 July 2025.

28    On 11 July 2025, the liquidators filed a creditor’s petition.

29    On 24 October 2025, Registrar Edwards (as her Honour then was) made a sequestration order and fixed the costs of the liquidators (as petitioning creditors) in the sum of $30,955.24.

30    On 30 October 2025, Judge Bingham dismissed Mr Rowell’s review application and affirmed the sequestration order.

31    In December 2025, Mr Rowell made the application for annulment determined by the primary judge.

32    The case that Mr Rowell sought to make before me was along the same lines as that recorded by the primary judge in her reasons at [35]-[38]:

35    When invited to make oral submissions at the hearing of his application, Mr Rowell’s case took on a new form and was, respectfully, very difficult to follow. More significantly, it was a case that was unsubstantiated and bordering on the fantastical. It is unnecessary to say much more about this new case save that it reflected Mr Rowell’s apparently genuinely held belief that documents produced on subpoena disclosed a further and different layer of appropriation of funds on account of legal fees, that should operate to extinguish any personal liability he might have to account for the costs orders.

36    As I understood Mr Rowell’s submissions, his case essentially was that from a review of the Liquidators’ Macquarie Bank statements for the Torbeckin administration account that he had obtained on subpoena, he had identified evidence of double recovery by the Liquidators of amounts referable to the costs orders that underpinned the creditor’s petition. This analysis reflected the identification of amounts debited to the account in respect of invoices that were referable to the costs orders (for example, payments to Barristers clerks) and the identification of further amounts for legal spend for which no invoice had been identified and that when combined came to $158,575.91. It was Mr Rowell’s contention that this last amount “near on added up to” the amount produced when one combined the total costs of the creditor’s petition, plus interest, plus the costs of the sequestration order and the costs orders that the Liquidators had obtained in Ms Domino’s proceeding in the Supreme Court. The differential was said to be $5,074.20.

37    Mr Rowell submitted that the Court should find that this analysis revealed that the Liquidators had covered their legal costs (as evidenced by the payment out of the account of amounts supported by invoice numbers) and had recovered them again “under the guise of debits with no invoice numbers”.

38    At hearing, I raised with Mr Rowell my concerns that this case was both far removed from its original articulation (whereby the Liquidator had received litigation funding from Secure Funding) and speculative in nature. Mr Rowell protested that: “And I’m sorry, but this is mathematically complex, and it requires some explanation. It is not a simple straightforward, ‘It was paid from there’, scenario. That is the issue, and that’s what the subpoenas started to show, and that’s why the remainder of the subpoenas were required”.

33    The liquidators’ case before the primary judge, and before me, was straightforward.

34    They submitted that there was no sufficient reason for the Court to go behind the six costs orders that founded the petition debt.

35    None of the six costs orders has been stayed, set aside, appealed away, or paid (and although Mr Rowell had sought stays of various of the costs orders, each such application had been refused).

36    Further, the liquidators gave unchallenged evidence on oath that the invoices had not been paid. Mr Cull deposed, in his affidavit of 16 January 2026:

104    In his affidavits filed 5 December 2025 and 16 December 2025, Mr Rowell alleges that legal costs associated with the Liquidators’ enforcement of the costs orders (including steps leading to the sequestration order) have been paid or otherwise recovered from a mortgage loan account held by Secure Funding (which trades as Liberty) and secured over the Richmond Property.

105    I deny that allegation. Neither I nor Mr Allen have received any payment from Secure Funding, their solicitors, or any other third party in satisfaction of any of the costs orders … or in satisfaction of the Liquidators’ fixed costs of the creditor’s petition…

106    Mr Rowell also alleges that the Liquidators’ legal costs have been “paid” because the Company has paid legal fees from funds of the winding up and he contends that those payments should be treated as satisfying the costs orders. I deny that contention. The Liquidators have incurred legal costs in the course of conducting the winding up and responding to proceedings and applications brought by Mr Rowell and Ms Domino. Those legal costs have been paid from moneys received into the liquidation in the ordinary course and are disclosed in the Company’s Annual Administration Return…

107    Relevantly, the Annual Administration Return discloses (among other things) receipts into the winding up (including rent receipts and investigation funding) and payments from the winding up, including payments described as “Legal Fees”. Those payments are payments made by the Liquidators from the liquidation account to the Liquidators’ legal service providers. They are not payments received by the Liquidators from Mr Rowell, Secure Funding, or any other third party in satisfaction of the costs orders.

108    On 11 November 2025, Secure Funding provided to me a loan statement for the period from 11 May 2025 to 11 November 2025… That statement records amounts said to be secured under its mortgage, including amounts described as interest and legal costs.

109    I do not have personal knowledge of how Secure Funding calculates or applies any legal costs recorded on that statement, and I have not requested Secure Funding to pay, and Secure Funding has not paid, any part of the costs orders…

110    As at the date that the sequestration order was made on 24 October 2025 and Mr Rowell’s application for review was dismissed on 30 October 2025, no amount had been received from Mr Rowell or any other person in reduction of the costs orders and they remained wholly unsatisfied…

111    After making enquiries and reviewing the records in the Liquidators’ possession, including the Company’s liquidation bank account records and our solicitors’ invoices and payment records, I verily believe no amount has been received from Mr Rowell or from any other person in reduction of the costs orders and they remain wholly unsatisfied.

37    Her Honour’s reasons then refer to invoices from Norton Rose Fulbright Australia (NRFA) that had been produced in response to subpoenas issued by Mr Rowell (and about which Mr Rowell made submissions before me, without producing those responses, claiming that he was prevented from doing so by operation of the rule in Harman v The Home Office [1983] 1 AC 280).

38    Her Honour continued at [45]-[48]:

45    The Liquidators submitted that the NRFA invoices, that had been produced in response to subpoenas issued on Mr Rowell’s application, did not prove payment of Mr Rowell's personal liability to the Liquidators. Instead, the invoices disclosed on their face that they were issued by NRFA to Secure Funding Pty Ltd, rather than to the Liquidators, the Liquidators’ solicitors, or to Torbeckin. It could be inferred that they were evidence of Secure Funding’s own legal costs, not payment of Mr Rowell’s separate indebtedness under the six costs orders.

46    The Liquidators submitted that as far as the Annual Administration Return was concerned, it did not assist Mr Rowell’s case theory. This was because – a matter referred to by Mr Cull in his evidence – the entries for “Legal Fees” in the Return were payments made out of the liquidation account to the Liquidators’ own legal service providers in the ordinary course of winding up. They were not payments received into the liquidation from Mr Rowell, Secure Funding, or any third party in reduction of the six costs orders.

47    The Liquidators submitted that at its highest, Mr Rowell’s case showed only that Secure Funding had incurred legal costs of its own, that those costs might have been capitalised to its secured account, and that the Liquidators separately incurred and paid legal costs from company funds in the ordinary course of the liquidation. The Liquidators submitted that none of this established payment of the petition debt and neither did it establish any appropriation of any amount against the six costs orders. The asserted “double recovery” or “triple recovery” thesis should be understood as nothing more than an inference drawn from timing and correlation, rather than proof of satisfaction.

48    The Liquidators submitted that to the extent that Mr Rowell sought to ventilate a new case theory at the hearing, it should be understood at its highest, as a complaint that legal fees had been incurred and paid by the Liquidators and that on the face of the Macquarie Bank statements it was not evident precisely how such legal fees had been paid.

39    Her Honour then summarised the relevant legal principles, and having done so concluded at [52]-[59]:

52    Mr Rowell bears the onus on the substantive question of whether the sequestration order ought not to have been made and on the separate question of whether the Court should exercise its discretion to annul his bankruptcy, assuming the first question is answered in his favour. Mr Rowell has not persuaded me on either matter.

53    As to the primary articulation of his case, which is reflected in his filed materials and to which the Liquidators prepared their response, Mr Rowell asserts that the Liquidators and Secure Funding, have conspired to agree an arrangement pursuant to which the Secure Funding mortgage facility would be used as a cash reserve to fund the Liquidators’ own legal fees. This assertion however does not withstand scrutiny when evaluated against Mr Cull’s unambiguous evidence. Mr Cull’s sworn evidence, which Mr Rowell did not directly challenge, was that no such arrangement had been orchestrated and importantly, at the time that the sequestration order was made on 24 October [2025] and maintained following the dismissal of Mr Rowell’s review application, the six costs orders remained unsatisfied by Mr Rowell or anybody who might be understood to represent him or his interests.

54    I have been given no sound reason to question Mr Cull’s evidence. The postulated nefarious relationship between the “Legal Service” entries that appear in the mortgage account maintained by Secure Funding and the dates on which events that incurred costs in the bankruptcy proceeding occurred, is based purely on conjecture. Mr Rowell’s efforts to uncover further documents that might assist him in shoring up such a relationship have been wholly unsuccessful.

…

56    If the first iteration of Mr Rowell’s case is properly characterised as speculative, the second iteration (as sought to be advanced at hearing) is within the realm of fantasy. It was abundantly clear that Mr Rowell was jumping at hypothetical shadows and seeking to draw links on dubious and imperfect correlations between funds debited to the account maintained by the Liquidators for the Torbeckin insolvency. I reject the claim that the Liquidators have done anything other than pay from the funds brought into the administration account the various legal fees incurred in the discharge of their duties.

57    It is unremarkable that the Liquidators would seek to make payments in respect of these legal fees and not wait for their recovery through payment of a series of costs orders, whose payment continues to elude them. It is further unremarkable that the legal spend for the Liquidators would be significant and increasing, considering the amount of litigation that Torbeckin and those associated with it, have generated.

58    It is important to recall that in this proceeding, Mr Rowell has levelled very serious charges against the Liquidators (and Secure Funding) including that they have engaged in the “practical equivalent of corporate theft” of his and Ms Domino’s equity. I have found that these claims are misconceived and unsubstantiated. A fundamental problem with Mr Rowell’s case is that it has relied on arguments previously ventilated and/or which he has sought to enlarge or adapt as new material has come to light. His case offends the injunction that a bankrupt who alleges grounds for the annulment of his or her bankruptcy should not advance grounds that cannot be proven by evidence already known to, or in the possession of, the bankrupt. This is especially so when the grounds for annulment include allegations of fraud or other wrongdoing. Relatedly, and a matter which resonates with particular force in this application, the annulment proceeding ought not to be commenced in the hope that such evidence might somehow emerge, by compulsive processes or otherwise.

59     In all the circumstances, I am not satisfied that the sequestration order ought not to have been made. I am satisfied, as Registrar Edwards and Judge Bingham were previously, that the six outstanding costs orders provided a proper foundation for the making of the sequestration order.

40    But there were two other reasons why the primary judge did not exercise the discretion to annul the sequestration order:

(1)    Mr Rowell had not placed before the Court any evidence that would permit a finding that he was presently solvent (I add that that remains the case); and

(2)    the Trustee informed the Court – and Mr Rowell acknowledged – that he had not filed (and has never filed) a statement of affairs, which he was required to have filed within 14 days of having been notified of his bankruptcy (that is, in November 2025): s 54(1) Bankruptcy Act.

41    As to paragraph 40(1) above, her Honour explained at [61]:

First and foremost, Mr Rowell has not placed before the Court any evidence that would permit a finding that he is presently solvent. To the contrary, Mr Rowell’s affidavit contains the acknowledgment that “on its face” his estate appears to have no free assets, apart from ordinary household items. I acknowledge that Mr Rowell also claims that this position is misrepresented because it does not account for “potential claims arising from falsified documents, misappropriation of funds and phoenix-style dealings” as well as the matters that I have ruled on in this proceeding. This is not evidence of solvency and certainly not present solvency. At best, it is evidence that Mr Rowell asserts a basis upon which to unwind certain transactions that might or might not result in an alteration of the present distribution of legal and equitable entitlements.

42    As to paragraph 40(2) above, her Honour explained at [62]:

Mr Rowell asserts that there are good reasons why he has not provided this document, however this is not the occasion to interrogate these reasons. The failure of Mr Rowell to comply with this obligation is a further reason why it would not be appropriate for the Court to exercise its discretion to annul his bankruptcy.

43    In the application before me, Mr Rowell relied on two affidavits, dated 17 April and 2 September 2026.

44    He also handed up two volumes of “hand-up” material, the relevance of which was never satisfactorily explained.

45    Mr Rowell had two complaints that I could decipher.

46    The first was the same as the complaint that he made to the primary judge, being that the costs orders have been paid.

47    He endeavoured to explain the basis for that contention by reference to Macquarie bank statements exhibited to his 2 September 2026 affidavit, but he could not do so, despite me affording him every opportunity to demonstrate what those statements evidenced.

48    The applicant’s other complaint was that the primary judge had denied him procedural fairness by refusing to accept any affidavit in excess of 20 pages.

49    However, despite being given the opportunity to do so, he could not explain to me what it was that he was denied from filing that could have made any difference to the outcome.

50    There is thus no basis for interfering with the primary judge’s exercise of discretion. The application for extension of time will be refused with costs.

Associate:

Dated:    22 October 2026