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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Adamopoulos v Olympic Airways SA [1990] FCA 280
Case
[1990] FCA 280
Decision Date
CaseChat Overview and Summary
Olympic Airways SA and Qantas Airways Limited, as petitioning creditors, sought a sequestration order against Constantinos Adamopoulos and Andriana Adamopoulos. The debtors are husband and wife and the judgment debt arose from a Supreme Court decision in May 1989, which was subsequently appealed but not diligently pursued. The petitioning creditors had failed to comply with directions to file affidavits by a certain date, but the debtors did not demonstrate prejudice from this delay. The court considered it inappropriate to dismiss the petition on the basis of an appeal against the Supreme Court judgment, especially given the lack of diligence in prosecuting the appeal.
The court found that the debtors had not provided any substantial grounds for opposing the sequestration order, and the failure to comply with directions for filing affidavits did not justify dismissing the petition. The debtors did not provide any evidence to support their claim that they did not owe the money claimed by the petitioning creditors. The court concluded that the petitioning creditors had established all the necessary matters for a sequestration order, and thus, the court made sequestration orders against the debtors. Additionally, the court ordered that costs, including any reserved costs, be taxed and paid according to the Bankruptcy Act 1966.