Dimitriou v Piscopo - [2021] FCA 1201

FEDERAL COURT OF AUSTRALIA
Dimitriou v Piscopo [2021] FCA 1201

File number: NSD 355 of 2021

Judgment of: STEWART J

Date of judgment: 5 October 2021

Catchwords: PRACTICE AND PROCEDURE – application for leave to file notice of discontinuance – costs – whether indemnity costs should be ordered – where applicant’s originating application made serious allegations – where allegations unsupported by any evidence – role of intemperate, abusive and harassing correspondence – effect of costs order against a bankrupt

Legislation:
Bankruptcy Act 1966 (Cth) ss 82, 153B(1)

Federal Court of Australia Act 1976 (Cth) ss 37M and 37N

Federal Court Rules 2011 (Cth) rr 5.21(a), 5.23(1), 16.21, 26.12(7)

Cases cited:
Adsett v Berlouis [1992] FCA 549; 37 FCR 201

Dimitriou v Pineview Property Holdings Pty Ltd [2020] FCAFC 218

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52

Lathwell v Lathwell [2008] WASCA 256 (S)

Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416

Division: General Division

Registry: New South Wales

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 30

Date of hearing: 5 October 2021

Counsel for the Applicant: The applicant appeared in person

Solicitor for the First Respondent: A Drayton of Drayton Sher Lawyers

Counsel for the Second, Third and Fourth Respondents: H Fielder

Solicitor for the Second, Third and Fourth Respondents: Kekatos Lawyers

ORDERS

NSD 355 of 2021

BETWEEN:
GEORGE DIMITRIOU

Applicant

AND:
SAMUEL PISCOPO

First Respondent

SUSAN ELIZABETH HUYBERS

Second Respondent

PINEVIEW PROPERTY HOLDINGS PTY LTD ACN 155 051 157 (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

STEWART J

DATE OF ORDER:

5 OCTOBER 2021

THE COURT ORDERS THAT:
1.The applicant have leave to file a notice of discontinuance of the proceeding.
2.The applicant file a notice of discontinuance of the proceeding within three days of these orders.
3.If the applicant fails to file a notice of discontinuance of the proceeding as required by Order 2, the proceeding be dismissed.
4.The applicant pay the first respondent’s costs of the proceeding on an indemnity basis.
5.The applicant pay the second, third and fourth respondents’ costs of the proceeding on a party and party basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore)
STEWART J:

Mr Dimitriou’s estate was sequestrated by orders of Wigney J on 30 August 2019 for the reasons published as Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416.
Mr Dimitriou appealed against those orders. The appeal was dismissed on 8 December 2020 for the reasons published as Dimitriou v Pineview Property Holdings Pty Ltd [2020] FCAFC 218 (Markovic, Anastassiou and Stewart JJ).
On 26 April 2021, Mr Dimitriou commenced the present proceeding in which he has at all times been self-represented. The originating application cited only one respondent, namely Samuel Piscopo personally and as trustee of Mr Dimitriou. For convenience I shall refer to…

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.

Continue reading Dimitriou v Piscopo

Details

AGLC: Dimitriou v Piscopo [2021] FCA 1201
Case: [2021] FCA 1201
Decision Date: 5 October 2021

CaseChat Overview and Summary

The case of Dimitriou v Piscopo involved the applicant, Dimitriou, seeking leave to discontinue a proceeding against the respondents, Piscopo and others. The application arose out of an originating application made by Dimitriou, which included serious allegations against the respondents. However, these allegations were unsupported by any evidence, and the parties engaged in intemperate, abusive, and harassing correspondence. The Federal Court was tasked with deciding whether to grant leave for the discontinuance and the appropriate costs order to be made.

The primary legal issue was whether indemnity costs should be ordered given the applicant's unsupported serious allegations and the intemperate conduct of the parties. The court considered the nature of the allegations and the lack of evidence to support them, as well as the effect of the costs order on a bankrupt. The court had to balance the need to discourage frivolous litigation with the potential hardship on the applicant.

The court found that the applicant's originating application contained serious allegations without any supporting evidence and that the parties had engaged in abusive correspondence. Given the circumstances, the court granted the application for leave to discontinue but ordered that the applicant pay the first respondent’s costs on an indemnity basis and the other respondents' costs on a party and party basis. The court noted the importance of discouraging unfounded litigation while also considering the effect of the costs order on the applicant.

The final orders were that the applicant have leave to file a notice of discontinuance, with a requirement to file it within three days. If the notice was not filed, the proceeding would be dismissed. The applicant was ordered to pay the first respondent’s costs on an indemnity basis and the other respondents' costs on a party and party basis.

Orders

Orders of the court

1. The applicant have leave to file a notice of discontinuance of the proceeding.

2. The applicant file a notice of discontinuance of the proceeding within three days of these orders.

3. If the applicant fails to file a notice of discontinuance of the proceeding as required by Order 2, the proceeding be dismissed.

4. The applicant pay the first respondent’s costs of the proceeding on an indemnity basis.

5. The applicant pay the second, third and fourth respondents’ costs of the proceeding on a party and party basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	NSD 355 of 2021
Judgment of:	STEWART J
Date of judgment:	5 October 2021
Catchwords:	PRACTICE AND PROCEDURE – application for leave to file notice of discontinuance – costs – whether indemnity costs should be ordered – where applicant’s originating application made serious allegations – where allegations unsupported by any evidence – role of intemperate, abusive and harassing correspondence – effect of costs order against a bankrupt
Legislation:	Bankruptcy Act 1966 (Cth) ss 82, 153B(1) Federal Court of Australia Act 1976 (Cth) ss 37M and 37N Federal Court Rules 2011 (Cth) rr 5.21(a), 5.23(1), 16.21, 26.12(7)
Cases cited:	Adsett v Berlouis [1992] FCA 549; 37 FCR 201 Dimitriou v Pineview Property Holdings Pty Ltd [2020] FCAFC 218 Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52 Lathwell v Lathwell [2008] WASCA 256 (S) Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Number of paragraphs:	30
Date of hearing:	5 October 2021
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	A Drayton of Drayton Sher Lawyers
Counsel for the Second, Third and Fourth Respondents:	H Fielder
Solicitor for the Second, Third and Fourth Respondents:	Kekatos Lawyers

ORDER MADE BY:	STEWART J
DATE OF ORDER:	5 OCTOBER 2021