Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King (No 2) [2023] FCA 846

Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King (No 2) [2023] FCA 846

The Notice of Objection to Competency was served and filed in January 2023, all parties had ample time to consider it, and no prejudice arose from its timing, so time should be extended under r 1.39. Mr King had no standing in the appeal because the notice of appeal related to Judge Vasta's decisions, not Judge Jarrett's first decision against Mr King; the grounds and relief concerned only Ms Yushkova; Mr King claimed no entitlement to the Helensvale property and would gain no advantage or suffer no relevant disadvantage from the appeal; and any property interest he might have had vested in the joint trustees under the Bankruptcy Act 1966 (Cth).

Jurisdiction
Australia
Judgment Date
25 July 2023
Procedural Posture
Appeal in Bankruptcy Proceedings; Notice of Objection to Competency / Determination of Respondents' Application to Extend Time for Filing a Notice of Objection to Competency and Whether the Second Appellant Had Standing in the Appeal
Outcome
Time was extended nunc pro tunc for the respondents to file the Notice of Objection to Competency, and the Court concluded that Mr King had no standing in the appeal proceedings.
Legal Topics
['notice of Objection to Competency' 'standing to Appeal' 'extension of Time' 'vesting of Bankrupt Property in Trustees' 'competency of Appeal']
['practice and Procedure' 'bankruptcy' 'appeals'] ['notice of Objection to Competency' 'standing to Appeal' 'extension of Time' 'vesting of Bankrupt Property in Trustees' 'competency of Appeal']

Case Brief

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Procedural Posture

Appeal in Bankruptcy Proceedings; Notice of Objection to Competency / Determination of Respondents' Application to Extend Time for Filing a Notice of Objection to Competency and Whether the Second Appellant Had Standing in the Appeal

Legal Issues

  1. 1 ['Whether time should be extended under r 1.39 of the Federal Court Rules 2011 (Cth) for the respondents to file a Notice of Objection to Competency under r 36.72(1).' "Whether Jeremy David Allen King had standing to participate as an appellant in the appeal from Judge Vasta's decisions." "Whether the notice of appeal could be treated as an appeal by Mr King from Judge Jarrett's first decision." "Whether Mr King's bankrupt status and the vesting of property in the joint trustees affected any standing he might otherwise have in relation to the Helensvale property."]

Ratio Decidendi

The Notice of Objection to Competency was served and filed in January 2023, all parties had ample time to consider it, and no prejudice arose from its timing, so time should be extended under r 1.39. Mr King had no standing in the appeal because the notice of appeal related to Judge Vasta's decisions, not Judge Jarrett's first decision against Mr King; the grounds and relief concerned only Ms Yushkova; Mr King claimed no entitlement to the Helensvale property and would gain no advantage or suffer no relevant disadvantage from the appeal; and any property interest he might have had vested in the joint trustees under the Bankruptcy Act 1966 (Cth).

Court Disposition

Time was extended nunc pro tunc for the respondents to file the Notice of Objection to Competency, and the Court concluded that Mr King had no standing in the appeal proceedings.

Orders

  • ['Pursuant to r 1.39 of the Federal Court Rules 2011 (Cth), the time by which the respondents were to file a Notice of Objection to Competency under r 36.72(1) of the Rules be extended, nunc pro tunc, to 23 January 2023.' 'The joint trustees provide to the other parties and the Associate a draft set of orders to...