Court of Appeal
Civil Appeal No. 12 of 1992
8th September, 1993
KENNETH ST. L. HENRY, P.
SIR LASCELLES ROBOTHAM, J.A.
PROFESSOR TELFORD GEORGES J.A.

Mr. Michael Young and Mr. Goldson for Appellant.
Mr. Rodwell Williams for Respondent.

Bankruptcy proceedings - Notice of appeal against adjudication order - Application for leave to serve notice of appeal out of time - Court of Appeal has power to extend time for service of notice of appeal - Court of Appeal Rules Order 11 rule 3 - Section 13 Court of Appeal Act - Order 3 rule 5 Supreme Court Rules of England - Power to be judicially exercised - No credible material before Court on which to exercise its discretion - Official Receiver not made a respondent to the appeal - On the making of the adjudication order the property of the debtor vests in the Official Receiver pending the appointment of a trustee - Therefore essential that notice of appeal against an adjudication order be given to the Official Receiver - Official Receiver ought to have been made a party to the appeal - Failure to do so fatal to appeal - No material upon which court could exercise its discretion to extend the time for filing a proper notice of appeal naming the Official Receiver as a respondent - No such application made in any event - Application to serve notice of appeal refused - Appeal dismissed.

R E A S O N S F O R J U D G M E N T

On the Respondent's petition a receiving order was made against the Appellant on September 15, 1992 consequent on the Appellant's failure to comply with a bankruptcy notice served on him on December 31, 1991. The Official Receiver by notice dated October 7, 1992 called a first meeting of the creditors on October 30, 1992. A report by the Official Receiver to the court dated November 2, 1992 states that at that first meeting of the creditors the following resolution was passed:

"That Derek Aikman, the above-named Debtor, shall be adjudged bankrupt, and that the Belize Bank Limited, Creditor, do apply to the Court to make the adjudication."

By notice of motion dated November 2, 1992 the Respondent applied for an order that the Appellant be adjudged bankrupt, and on November 13, 1992 that order was made by the court. The Appellant on December 2, 1992 filed a notice of appeal against that order, naming the Belize Bank Limited as the sole Respondent to the appeal. The notice of appeal was not, however, served on the Respondent who by notice of motion dated January 29, 1993 objected to the hearing of the appeal on the grounds:

"1. That the appeal is being brought in breach of the provisions of Order II rule 4(2) of the Court of Appeal Rules, 1967, in that a copy of the notice of appeal was not served on the Respondent.
2. That the appeal is being brought in breach of the provisions of section 18 of the Court of Appeal Act in that the appeal has not been properly set down for trial and the proceedings are therefore irregular.
3. That the appeal is being brought in breach of the provisions of Order II rule 13 of the Court of Appeal Rules, 1967, in that the appeal has not been properly entered for hearing and the proceedings are therefore irregular."

The Appellant by notice dated May 6, 1993 sought leave to amend his grounds of appeal and to serve out of time on the Respondent a copy of the notice of appeal.

In an amended notice dated May 13, 1993 the Respondent objected to the hearing of the appeal on the additional ground:

"That all the proper parties are not before the Court in that the Official Receiver should be made a Respondent to the appeal and be served with notice thereof."

On May 14, 1993 we refused the Appellant's application for leave to serve the notice of appeal out of time and we dismissed the appeal. We promised to give reasons in writing for our decision and now do so.

The first question which we had to decide was whether there was power to extend the time for serving the notice of appeal, since neither the Court of Appeal Act nor the Court of Appeal Rules, 1967 contains specific provisions for extending the time within which a notice of appeal is required to be served. There is much to be said for the approach that the significant act is the filing of a valid appeal, that service of the notice of appeal on the Respondent named in that appeal is merely a procedural step towards the hearing of the appeal, and that the time prescribed for taking that step is part of the time table for the conduct of the litigation. On this approach the power conferred by Order II rule 3 of the Court of Appeal Rules to extend the time for performing the significant act of filing the appeal must necessarily include a concomitant power to extend the time for taking the merely procedural step of serving the notice of appeal. But in any event section 13 of the Court of Appeal Act provides as follows:

"13. Where in any case no special provision is contained in this or any other Act, or in rules of court, with reference thereto, any jurisdiction in relation to appeals in criminal and civil matters shall be exercised by the Court as nearly as may be in conformity with the law and practice for the time being in force in England in the Court of Appeal."

In England Order 3 rule 5 of the Rules of the Supreme Court clearly confers on the Court of Appeal the power to extend the time for serving a notice of appeal. It provides:

"5(1) The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

(4) In this rule references to the Court shall be construed as including references to the Court of Appeal." In our view the Court of Appeal in Belize has a similar power. The power must, however, be judicially exercised. The Appellant's explanation for his failure to serve the notice of appeal is set out in an affidavit dated May 6, 1993 in which he states:

"2. The Notice of Appeal dated the 2nd of December 1992 was prepared by my attorney Mr. Hubert Elrington.

3. I signed the Notice of Appeal and on my said attorney's advice delivered the notice to the Registry and filed the same.

4. I was not aware that there was a legal requirement that a copy of the Notice of Appeal was to be delivered to the office of the Respondent's attorney within seven days or at all."

The explanation is not credible and manifests a disregard for the rules bordering on contempt, since in an earlier appeal C.A.3 of 1992 in connection with the same bankruptcy proceedings between the same parties the same failure to serve the notice of appeal had occurred and the same preliminary objection to the hearing of the appeal had been taken. The Appellant's attorney at that time was also his attorney at the time the present appeal was filed. There is therefore no credible material on which the court can exercise its discretion. We respectfully adopt the dictum of the Judicial Committee of the Privy Council in Ratnam v. Cumarasamy (1965) 1 W.L.R. at p. 12 to the following effect:

"the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation."

For this reason the Appellant's application for leave to serve the notice of appeal out of time was refused, and on this basis alone the appeal would have to be dismissed. But in addition there was the failure to make the Official Receiver a Respondent to the appeal.

It would appear that because of the wording of the creditors' resolution referred to in the report by the Official Receiver the application for an adjudication order was made by notice of motion by the Respondent rather than by the Official Receiver. Nevertheless it is clear on the authorities that, once a receiving order has been made, the Official Receiver becomes the representative of all the creditors and is the proper person to apply on their behalf for the adjudication order. Furthermore, on the making of the adjudication order the property of the debtor vests in the Official Receiver pending the appointment of a trustee. It is therefore essential that notice of appeal against an adjudication order be given to the Official Receiver. In Re Baron, Debtor v. Petitioning Creditors and Official Receiver (1943) 2 All E.R. 662 at 664 Morton J stated:

"I need not consider the question whether any individual creditor could or could not have applied. In fact, the Official Receiver has applied for the adjudication; and I cannot see that any person other than the Official Receiver and the debtor is a proper party to this appeal."

In the present case, as we have stated, the notice of motion was by the Respondent. But the Official Receiver appeared at the hearing and for the reasons we have given ought to have been made a party to the appeal. The failure to do so is fatal to the appeal which would have to be dismissed on this basis also.

Ordinarily the court would have a discretion to extend the time for filing a proper notice of appeal naming the Official Receiver as a Respondent. But in the particular circumstances of this case we do not consider that there was material on which such a discretion could be exercised and indeed no such application was made.

It is for these reasons that we refused the application to serve the notice of appeal out of time and dismissed the appeal.

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