Adamopoulos v Olympic Airways SA

[1989] FCA 871

JUDGMENT No. ...m,.... l . / !

IN THE FEDERAL COURT OF AUSTRALIA )

GENERAL DIVISION	1
BANKRUPTCY DISTRICT OF THE STATE )	NO B3848 of 1989
OF NEW SOUTH WALES AND AUSTRALIAN )
CAPITAL TERRITORY	)

Re:  CONSTANTINOS ADAMOPOULOS and ANDRIANA ADAMOPOULOS

Ex Parte: OLYMPIC AIRWAYS SA and

QANTAS AIRWAYS LIMITED

CORAM: Einfeld J.
DATE : 31 October 1989

PLACE: Sydney

EX TEMPORE JUDGMENT

There is before the court bankruptcy notice number B 3848 of 1989 issued by and on behalf of Olympic Airways and Qantas Airways against Mr and Mrs Adamopoulos on 21 September 1989 claiming a little over $85,000 plus interest apparently due under a judgment of the Equity Division of the Supreme Court of New South Wales (Powell J ) on 8 May 1989.

It appears that the amount in question arose out of the non payment to these airlines by Mr and Mrs Adamopoulos or their company, in circumstances which have been investigated by Mr Justice Powell in the Supreme Court, of the cost of overseas airline tickets used by clients of the travel agency or former

travel agency of Mr and Mr Adamopoulos.

The debtors appear by Mr Adamopoulos in person. In another related matter, number B 3196 of 1989, they had made an application to set aside the bankruptcy notice. I have just set aside the bankruptcy notice by consent and there is on the file no application to set aside this bankruptcy notice in B 3848 of 1989.

However, Mr Adamopoulos says that he did not file an additional application in respect of this bankruptcy notice because he thought that the other application applied to both of the notices or some such reason. In the circumstances and because he appears in person, I was prepared to accept from the bar table an application viva voce of the same kind in respect of this notice and to take as his evidence in support of that application the material he stated from the bar table, together with other documentation which has been filed in this and the previous proceedings.

Amongst other things he showed me a notice of appeal to the Court of Appeal of New South Wales against M Justice Powellrs judgment. I am additionally informed that when judgment was earlier entered by Mr Justice Rogers in respect of another sum of	money but apparently in some way including the present stated	debt, there was an application for leave to appeal out of time
made to Mr Justice Brownie which was refused and the applicant has appealed that judgment as well.
The only grounds stated by Mr Adamopoulos in support of his application to set aside the current bankruptcy notice is that these appeal proceedings are pending which he says will if successful in substance establish that there is no debt to found the current bankruptcy notice.
These matters have been already proceeding for a very long time. I have been informed, for example, that the original proceedings before Mr Justice Rogers were disposed of in 1987 and that this debt antedated those proceedings. Not all of the delay has been due to Mr Adamopoulos because there was as between proceedings
3196 and 3848 a change in the stated judgment creditor from
Olympic Airways solely to Olympic Airways and Qantas Airways jointly.
My interrrogation of Mr Adamopoulos today makes it clear to me that his appellate proceedings in the New South Wales Court are to say the least rather weak. It is very difficult indeed to imagine that he could succeed in his application for leave to appeal from Justice Brownie's refusal of leave to appeal from Mr Justice Rogers, having in mind the factual matters which were discussed today.
It seems that only a technicality or a series of technicalities, including perhaps some mathematical or calculation errors, could remove the judgment or orders of Mr Justice Powell. In the
proceedings 3196 where Mr Adamopoulos did file his application to set aside a bankruptcy and some evidence, there was nothing provided which indicated that the moneys claimed in the current bankruptcy notice 3848 were not and are not in fact owing by him to either or both of the two entities who are proceeding on the current bankruptcy notice.

l	Nor does he point to, nor can I find, any technical defect in the
l l
I	bankruptcy notice 3848. This was also examined by a deputy
registrar yesterday who was also unble to find and has not reported on any defect in the form of the notice.
In these circumstances I can see no basis upon which the application to set aside the bankruptcy notice could be granted and I refuse the application. During the course of argument, however, it really emerged that what Mr Adamopoulos was asking for was for an adjournment of the application to set aside the bankruptcy notice or perhaps an extension of time within which to comply with the bankruptcy notice.
Again although there are no formal applications filed, I am willing in the circumstances to treat those applications as if they had been duly made and supported by affidavit evidence of the matters stated from the bar table. For the reasons previously given, I could see no warrant for adjourning the application to set aside the bankruptcy notice and that is why I have proceeded with it and dealt with it.
because there is an appeal from the judgment on which it is There is no ground to set aside a bankruptcy notice merely
based. In any event, the circumstances of those appeals in the way I have outlined make it unlikely that these appeals are of such a kind and of such weight as would call for a deferral of consideration of the bankruptcy notice. It is obvious, for example, that if a petition is issued on a bankruptcy notice, the
debt of which has completely collapsed by the decision of another court, it will not be possible for the judgment creditor to prove his case when the petition is presented because it will not be possible to prove that there is a valid outstanding debt which has not yet been paid.
On the issue of whether time to comply with the bankruptcy notice should be extended, an application which I have as it were deemed Mr and Mrs Adamopoulos to have made, even though he himself did not mention it and there are no documents on the file making the application, it seems to me that similar considerations should be applied.
The debt comprised in the current bankruptcy notice, although it only came in a judgment of the Supreme Court on 8 May this year, in fact appears to have been of considerably longer standing, in fact if not in law.
Mr Adamopoulos says that he does not have the money to pay the amount claimed in this bankruptcy notice which is only a small proportion of the amount of the judgment of Powell J.
No grounds have been given and no basis has been laid for a suggestion that if time to comply with the bankruptcy notice was
extended, there would be any likelihood of any payment of substance being made, or of any other application which might throw into doubt that the bankruptcy notice should have the efficacy which the Act provides for it, particularly in the circumstance that non-compliance represents an act of bankruptcy which can result in sequestration.
In my opinion there is no material and no suspicion of a case to justify the extention of time for compliance. I therefore dismiss that application as well. I order that the judgment debtors pay the judgment creditor's costs of the applications today.

I certify that this anrl the

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