Singh v Official Trustee in Bankruptcy [2011] FCA 98 (28 January 2011)

Last Updated: 18 March 2011

FEDERAL COURT OF AUSTRALIA

Singh v Official Trustee in Bankruptcy [2011] FCA 98

Citation:		Singh v Official Trustee in Bankruptcy [2011] FCA 98
Parties:		MOHINDER SINGH v THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF MOHINDER SINGH
File number:		VID 59 of 2011
Judge:		NORTH J
Date of judgment:		28 January 2011
Date of hearing:	28 January 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The applicant appeared in person.
Counsel for the Respondent:	Mr Lhuede
Solicitor for the Respondent:	Piper Alderman Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 59 of 2011

BETWEEN:	MOHINDER SINGH Applicant
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF MOHINDER SINGH Respondent

JUDGE:	NORTH J
DATE OF ORDER:	28 JANUARY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for leave to appeal against the orders made by Federal Magistrate O’Dwyer on 27 January 2011 is refused.
2. The costs of the Official Trustee in Bankruptcy are costs of the bankrupt estate of Mohinder Singh.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 59 of 2011

BETWEEN:	MOHINDER SINGH Applicant
AND:	THE OFFICIAL TRUSTEE IN BANKRUPTCY AS TRUSTEE OF THE BANKRUPT ESTATE OF MOHINDER SINGH Respondent

JUDGE:	NORTH J
DATE:	28 JANUARY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an application for leave to appeal by Mohinder Singh, the applicant, from part of the orders made by O’Dwyer FM on 27 January 2011. O’Dwyer FM ordered that by 4 pm on 28 January 2010, the applicant produce and hand over to the solicitors for the respondent, at a nominated address, the certificate of title, volume 10746, folio 173, being the certificate of title of the property known as 10 Lochie Place, Taylors Hill. Today the applicant filed an urgent application for leave to appeal and supported the application with an affidavit, sworn by himself, and a draft notice of appeal.
2. The respondent was represented at the hearing by Mr Lhuede who was given notice of the application by the Court and who made oral submissions, including submissions regarding the chronology of events. The applicant agreed that these submissions represented the relevant chronology of events. A sequestration order was made against the applicant’s estate on 28 February 2008. On 8 October 2010, in the course of that bankruptcy, the respondent applied for orders including an order for the delivery up of the said certificate of title. On 12 November 2010, Riethmuller FM made orders in that application, which included an order that the applicant appear before the Court on 27 January 2011, to produce the certificate of title.
3. On 27 January 2011, the applicant appeared before O’Dwyer FM but did not produce the certificate of title. Mr Lhuede explained that the purpose of the respondent seeking production of the certificate of title was in order to commence the process of sale of the land in question, which is a vacant block of land.
4. The order made by O’Dwyer FM is an interlocutory order and consequently leave to appeal from that order is required. Leave to appeal will be granted if the decision is attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 398-400 (Decor).
5. The applicant contends that O’Dwyer FM erred because the applicant has filed an application for the annulment of the bankruptcy and until that is determined it is not proper that the respondent have custody of the certificate of title. A ground of appeal is that the applicant is not required to provide the duplicate certificate of title until the conclusion of the civil proceedings which have been instituted. The applicant also says that the proceeding before the O’Dwyer FM should, in any event, be transferred to the Federal Court of Australia before Bromberg J who is presently considering some other applications relating to his bankruptcy.
6. There is no merit in the proposed argument foreshadowed by the applicant. He is presently subject to a sequestration order and O’Dwyer FM, as a matter of discretion, determined that the respondent should be armed with the certificate of title in aid of the administration of the bankruptcy. There is no rule of law or practice which requires that such orders await the conclusion of proceedings even if allied to the bankruptcy proceedings. Mr Lhuede recognised the practicality lying behind the appellant’s argument and indicated that the respondent would not utilise the certificate of title if the annulment application were progressed expeditiously. That is a counsel of common sense but not a requirement of the law.
7. Thus, in relation to the first element of the test in Decor, the applicant has not established that there is sufficient doubt attending the order of O’Dwyer FM to warrant the matter being considered on appeal. Neither is the second limb of the test satisfied. There is no injustice which would result if leave were refused, even supposing the decision of O’Dwyer FM to be wrong. The certificate of title, in the hands of the respondent, may only be used in lawful activities undertaken by the respondent. Those activities are open and available to be scrutinised by the applicant. He has every opportunity to challenge the use of the certificate of title. The requirement to hand it to the respondent is a purely mechanical step which does not result in any injustice, even if the requirement is unwarranted in law. It follows from these reasons that the application for leave to appeal against the order of O’Dwyer FM is refused.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 14 February 2011