Adamopoulos v Olympic Airways SA

[1990] FCA 280

JUDGMENT No. .2..?!..!?/....?.!?.....

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY
1
GENERAL DIVISION	) NO. P2630 O0f 1989

RE: CONSTANTINOS ADAMOPOULOS AND

ANDRIANA ADAMOPOULOS

Judgment Debtors

EX PARTE: OLYMPIC AIRWAYS SA

QANTAS AIRWAYS LIMITED

Petitioning Creditors

CORAPl :	W1 LCOX	J
PLACE:	SYDNEY

DATE :  5 JUNE 1990

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        A sequestration order be made against the estate of each debtor.

2. Costs, including any reserved costs, be taxed and paid, according to the Bankruptcy Act 1966.

Note:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. [See also Order 37
rule  2 ( 3 ) 1 .
IN THE FEDERAL COURT OF AUSTRALIA	)
\

NEW SOUTH WALES DISTRICT REGISTRY i

GENERAL DIVISION ) NO. P2630 of 1989

RE: CONSTANTINOS ADAMOPOULOS AND

ANDRIANA ADAMOPOULOS

Judgment Debtors

EX PARTE: OLYMPIC AIRWAYS SA

QANTAS AIRWAYS LIHITED

Petitioning Creditors

CO-:	WILCOX J
PLACE :	SYDNEY
DATE :	S JUNE 1990

REASONS FOR EXTEMPORE JUDGMENT

WILCOX J:  There is before the Court for hearing a petition

by two creditors, Olympic Airways SA and Qantas Airways

Limited, seeking sequestration orders against Constantinos

Adamopoulos and Andriana Adamopoulos.	The debtors are husband
and wife.	M r Adamopoulos appears today on his own behalf and
also on behalf of his wife.
The matter has a history. It appears that the debt

relied upon by the petitioning creditors arises out of a
judgment given in the Supreme Court of New South Wales, Equity
Division, in May 1989. At that time Powell J dealt with an

appeal against a decision given by Master Hogan. His Honour
made orders dismissing the appeal and ordering the payment by
the present debtors to the present petitioning creditors of

the sum of $85,020.

A notice of appeal was filed against this judgment.

That appeal has not yet been heard. There has been tendered

in evidence a printout, dated 18 Hay 1990, from the Supreme

Court civil system computer file, relating to the history of

the appeal. It is not necessary to go to it in any detail.

~t shows that no index of the appeal papers has yet been
settled. There were a number of directions made in respect of
which there was default by the would-be appellants during the
latter part of 1989. According to the computer printout,
there has been no action on the appeal since some directions,
which were given on 28 November 1989, in respect of the
preparation of an index. The matter was stood out of the list

with leave to restore when the directions had been complied

with. I have been told from the bar table by Mr Adamopoulos

that an appointment has now been made to index the appeal

papers on 20 July next. I have no reason to doubt the

accuracy of what M r Adamopoulos says, but it is quite obvious
that the appeal has not been diligently pursued, and it is a
matter of speculation when it will be heard; if indeed it will

be prosecuted to finality.

The debtors have filed two documents which might be

described as notices of opposition. The first of them was

filed on 5 December last, and the substantial matter raised by

that document was the pendency of the appeal. The second

notice of opposition, which was filed only this week, is based on the fact that the petitioning creditors did not comply with some directions given by Sweeney J on 1 narch 1990 in respect

to the filing of affidavits. On that occasion, the matter was

before his Honour to determine the course to be taken.
Sweeney J was apparently informed that the petitioning
creditors had in mind filing some further affidavits
concerning the authority of the person who executed the
petition on behalf of the first petitioning creditor; that is
to say, Olympic Airways, a Greek company. His Honour directed

that any affidavits be filed by 22 narch.

This did not happen. But an affidavit was filed on

or about 9 April; that was an affidavit of Xr Vassiliui Palli
sworn on 28 March. I do not know the reason for the delay,
but I note that the affidavit had to be sworn in Athens and

that it was sworn before a Vice Consul of the Australian

Embassy in Athens on 28 March.

A letter was sent to Mr and Mrs Adamopoulos dated 4

April which purported to enclose copies of two affidavits: namely the affidavit of Mr Palli of 28 April and an affidavit

of that same date - that is, 4 April - by Mr Julian McGrath,

the person handling the matter in the office of the solicitors

for the petitioning creditors. Mr Adampoulos has said from

the bar table that this letter was received by him on 12

~ p r i l , and that there were enclosed with the letter certain

documents which were photocopies. Re said that they were not
easily readable. As he did not bring the letter with him to
Court today, I have not seen the quality of the photocopies,

and I can form no judgment about what was sent.

In any event, the petitioning creditors arranged for

personal service of all these documents, and on 30 April there
was served upon the debtors a letter from the petitioning
creditors' solicitors dated 10 April, together with copies of
each of the two affidavits. No complaint is made about the
quality of those copies. This means that, although there was
default in compliance with the directions of Sweeney J, the
debtors have now had some five weeks since, on any view of the
matter, they received legible copies of the relevant

affidavits.

nr Adamopoulos, on behalf of himself and his wife,

put two substantial matters in support of his proposition that	the petition ought be dismissed. The first matter was that he
said that he and his wife did not owe the money claimed by the petitioning creditors. He said that the decision reached by Powell J in the Supreme Court was wrong, and he made some statements from the bar table in support of this submission.
In my view it is not appropriate for this Court to go behind the judgment entered in the Supreme Court.	There is
jurisdiction in this Court to go behind a judgment.	This

jurisdiction is exercised from time to time, particularly in a case where a judgment has been entered by default. But in the present case the matter was dealt with in the Supreme Court on two separate occasions: firstly by Master Hogan, and secondly

by Powell J. The matter was dealt with by Powell J on a

defended basis, Mr Adamopoulos appearing on that occasion. Hr
and Mrs Adamopoulos had a right of appeal from his Honour's
decision, and they exercised this right by filing a notice of
appeal. But despite the passage of some 13 months, the matter
is no closer to finality than it was when his Honour gave
judgment.

I do not think that it would be a correct exercise of

discretion for this Court to refuse a sequestration order upon
the basis that a judgment entered after a contested hearing
before a Supreme Court judge is subject to an appeal,
particularly with a history of dilatoriness in prosecuting an

appeal from that decision.

it will be a matter for the trustee of the bankrupt estates to If a sequestration order is made

determine whether to pursue the appeal. One may be confident
that, if there is any substantial merit in the appeal, this

step will be taken.

The second matter relied upon by Mr Adamopoulos is

the failure by the petitioning creditor to file the additional affidavits by 22 March. There was clearly a failure to comply with the Court's direction. This has not been explained,

except insofar as some inference might be drawn from the place
of the execution of the affidavits.

I indicated to Mr Adamopoulos that I did not regard a default in compliance with directions as to filing affidavits as a sufficient reason to dismiss the petition. But I added

that I would be prepared to give favourable consideration to any application for an adjournment which he might make if he could indicate to me that there was a substantial ground of

opposition, and that his opportunity of defending the matter upon that substantial ground had been prejudiced by the late

service of the affidavits. No substantial ground was put

other than a repetition of the submission regarding the

correctness of the judgment in the Supreme Court. There was

nothing put before me to indicate that there was any prejudice
sustained as a result of the late service of the affidavits.

No affidavit evidence has been filed by either Mr or ~ r s

Adamopoulos in support of their opposition to the making of a

sequestration order.

In the circumstances, I do not think that the late

service of the affidavits supplies a reason for dismissing the petition. No adjournment is sought, and in any event there is no basis for an adjournment laid by way of evidence. There is no reason to do other than to deal with the petition on its

merits today.

The affidavit evidence covers all of the matters

which are normally required to be established by a petitioning
creditor. The only matters of opposition which have been
raised fail. Accordingly, it is appropriate for me to proceed
to make sequestration orders against the debtors, and I will

do so.

I find the matters alleged in the petition to be

proved. In particular I find that each of the debtors

committed the act of bankruptcy alleged against him or her in
the petition; namely, that he or she failed, on or before 1C
October 1989, either to comply with the requirements of the
bankruptcy notices served on each of the debtors on 26
September 1989, or to satisfy the Court that he or she had a
counter-claim set off, or cross demand, equal to or exceeding
the sum specified in paragraph A of the bankruptcy notice. I
find proved all of the matters of which 5.52 of the Bankruptcy
Act 1966 requires proof. I make a sequestration order against each of the debtors. I order that that costs including any

reserved costs, be taxed and paid according to the Act.

I certify the seven preceding

pages to be a true copy of
the Reasons for Judgment of

his Honour Justice Wilcox.

Associate: %,*L- Date: S June 1990

Hr Adamopoulos appeared for

himself and his wife.

Counsel for the Petitioning Creditors: Mr M Aldridge

Solicitors for the Petitioning Creditors: Hinter Ellison

Date(s) of hearing:  S June 1990