Podberry v Peak
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUCKLEY,LORD JUSTICE EVELEIGH |
| Judgment Date | 19 December 1980 |
| Judgment citation (vLex) | [1980] EWCA Civ J1219-10 |
| Docket Number | No. 3 Of 1979 (Oxford County Court) |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1980 |
Re: Alan Spencer Podbery
Ex Parte Mavis Daisy Podbery
[1980] EWCA Civ J1219-10
Lord Justice Buckley
Lord Justice Eveleigh
and
Lord Justice Oliver
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On Appeal from the High Court of Justice
Chancery Division
(Divisional Court in Bankruptcy)
MR. LEO CURRAN (instructed by Messrs. Darby & Son, Solicitors, Oxford) appeared on behalf of the Applicant (Appellant).
MR. ANTHONY CLOVER (instructed by Messrs. Bower & Bowerman, Solicitors, Bicester) appeared on behalf of the 1st Respondent (Respondent).
I have asked Lord Justice Eveleigh to read the judgment of the court.
On 10th March 1980, in the Oxford County Court on the application of the Trustee in Bankruptcy, His Honour Judge Clover Q. C. made an order for the sale of the property known as No. 3 Cumnor Road, Par moor, Oxfordshire, but postponed the sale for three months from the date of the order. The property was jointly owned by the bankrupt and his wife. No notice of appeal was served, but on 5th August 1980 the applicant gave notice of her intention to apply to the Divisional Court for an extension of time in which to appeal. On 23rd October the Divisional Court refused the application. The applicant now appeals against that refusal pursuant to leave of this court given on 3rd November.
At the hearing of this appeal argument was first directed to the question whether the court had jurisdiction to entertain an appeal against the refusal of the Divisional Court to extend the time for appealing to it from the County Court. The application, was also considered on its merits de been and we decided that we ought not to interfere with the discretion of the Divisional Court even if we had jurisdiction to do so. This judgment is concerned with the first point, namely the jurisdiction to entertain the appeal.
Section 108 of the Bankruptcy Act reads as follows: "(1) Every court having jurisdiction in bankruptcy under this Act may review, rescind or vary any order made by it under its bankruptcy jurisdiction. (2) Orders in bankruptcy matters shall, at the instance of any person aggrieved, be subject to appeal as follows: (a) where the order is made by a county court, an appeal shalllie to a divisional court of the High Court, of which the judge to whom bankruptcy business is for the time being assigned shall, for the purpose of hearing any such appeal, be a member. The decision of the divisional court upon any such appeal shall be final and conclusive, unless in any case the divisional court or the Court of Appeal sees fit to give special leave to appeal there from to the Court of Appeal, whose decision in any such case shall be final and conclusive; (b) where the order (not being an order on appeal from a county court) is made by the High Court, an appeal shall lie to the Court of Appeal, and an appeal shall, with the leave of the Court of Appeal, but not otherwise, lie from the order of that court to the House of Lords".
Rule 132 of the Bankruptcy Rules, 1952, provides: "Subject to the foregoing Rules, the Rules of the Supreme Court relating to appeals to the Court of Appeal shall apply to appeals to the Appellate Court as if the expression 'Appellate Court' were substituted for the expression 'Court of Appeal' wherever it occurs in those Rules".
By virtue of Order 55, Rule 1(3) and Order 59, Rule 4(1)(b) the time for appeal is 21 days. However Order 3, Rule 5(1) provides: "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". Order 3 Rule 5(4) reads: "In this rule references to the court shall be construed as including references to the Court of Appeal". The appellate court in the present case being the Divisional Court by virtue of section 108(2)(a), that court will be substituted for the expression "Court of Appeal" by virtue of rule 132 ofthe Bankruptcy Rules, 1952; and by the further cross reference in Order 3t Rule 5(4) the Divisional Court is given power to extend the time for appeal.
It has been submitted that the Court of Appeal under Order 3, Rule 5 has an original jurisdiction to extend the time for appealing to the Divisional Court, We do not agree. Order 3, Rule 5W is intended to give the Court of Appeal power to extend time in relation to its own proceedings. The technique of drafting by cross reference has been used, but this does not give the Court of Appeal the same original power as that of the court to which the reference has been made. It is true that the Court of Appeal does extend the time for proceedings in the High Court. This however results from a true exercise of its appellate jurisdiction.
Section 27(1) of the Supreme Court of Judicature (Consolidation) Act 1925 reads: "Subject as otherwise provided in this Act and to rules of court, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court, and for all the purposes of and incidental to the hearing and determination of any appeal, and the amendment, execution and enforcement of any judgment or order made thereon, the Court of Appeal shall have all the power, authority and jurisdiction of the High Court". Once the Court of Appeal has jurisdiction to hear and determine an appeal, it may then by virtue of this subsection exercise the jurisdiction of the High Court.
It was also sought to establish jurisdiction by virtue of section 108(2)(a) of the Bankruptcy Act 1914- on the grounds that the Divisional Court's refusal to extend the time for appeal from the County Court came within the words "The decision of theDivisional Court upon such an appeal". In our opinion the refusal was not a decision upon an appeal. In section 108(2)(b) we find the expression "not being an order on appeal from a County Court". This is significant. The expression "an order on appeal" is apt to cover any order made in the course of an appeal. decision "upon an appeal", however, results from an appeal having been heard. In the present case there has been no hearing of "any such appeal" as subsection (2)(a) refers to, namely, an appeal from an order made by the County Court. An application for leave is not an appeal.
It is then said that the case falls within section 108(2)(b). It is submitted that the refusal was not an order on appeal from a County Court and consequently this appeal falls directly within the subsection. We will in a moment consider whether a refusal to extend time is an order. If it is, however, in our opinion it is an order on appeal from a County Court. The contrast between the expression "decision upon an appeal" and "order on appeal" indicates that the latter is dealing with an order which is in the...
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