Evangelinidis v Tsekouras

[2000] FCA 587

FEDERAL COURT OF AUSTRALIA

Evangelinidis v Tsekouras [2000] FCA 587

VIVECA EVANGELINIDIS v CON TSEKOURAS

N 7106 OF 2000

EINFELD J
2 MAY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7106 OF 2000

BETWEEN:	VIVECA EVANGELINIDIS Applicant
AND:	CON TSEKOURAS Respondent

JUDGE:	EINFELD J
DATE:	2 MAY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. A creditor’s petition dated 16 December 1999 was filed in the Court on 10 February 2000 by the applicant, Viveca Evangelinidis, a solicitor, claiming that the respondent debtor, Con Tsekouras, owes her some $74,300.44 following upon a judgment in the District Court on 14 October 1999 to which interest has been subsequently added.  The subject of the debt was legal costs in respect of an unsuccessful action for damages for professional negligence brought by the respondent against the applicant in proceedings which took place in the Supreme Court of New South Wales.  A notice of opposition to the petition has been filed by Mr Tsekouras on 9 March 2000 which appears to be a claim that Miss Evangelinidis owes him some $90,000 odd more than he owes her. 

2. An affidavit was filed by Mr Tsekouras in these proceedings on 7 April 2000 which sets out in fairly cryptic form the history of this present litigation and how he claims that the $90,000 odd is owed to him by the applicant.  In that affidavit he refers to an appeal from his unsuccessful negligence claim which I have been informed has subsequently been dismissed.  It can be anticipated that if that is so, additional costs will be owing by him over and above that which is claimed in the petition.

3. The petition is based upon a failure by Mr Tsekouras to comply with a bankruptcy notice within the requisite period.  An application to a Registrar to set aside the bankruptcy notice was dismissed and a review of that dismissal by a Judge of the Court was also dismissed on 7 December 1999.  An appeal against the dismissal of the review application is pending.

4. Within the proceeding commenced by the creditor’s petition, Mr Tsekouras has presented a motion on 7 April seeking:

   “(1)     Evangelinidis solicitor dismissed all the costs 

   (2)    The applicant wishes to renew the application for costs.”

5. I have found it very difficult to understand what the motion seeks.  No costs have as yet been ordered in the proceedings commenced by the presentation of the creditor’s petition.  In fact there has been no hearing of the petition at all which is fixed in June.  Hence no motion in respect of the costs of the petition can possibly be heard at this time.  Moreover, there are in fact no orders sought in express terms in the motion.  I therefore asked Mr Tsekouras today on several occasions what orders he sought of the Court at this time.  In response he presented to me an affidavit sworn and filed on 19 November 1999 in proceedings N8266 of 1999 (which I think was the review of the Registrar’s refusal to set aside the bankruptcy notice).  He says that that affidavit came about as a consequence of a request from the court registry that he list all the amounts he has paid. 

6. I do not understand the context in which such a request could have been made of him by the registry and think it unlikely that any was.  In any event the affidavit purports to set out what he has apparently paid in respect of matters related to the action for damages for professional negligence against the applicant.  I have given consideration to that affidavit even though it has not been filed in the present proceedings but it has nothing to do with the matters raised in the motion and does not assist in any way in its consideration.  Mr Tsekouras also handed me a letter dated 27 April 2000 from a Deputy District Registrar of the Court to the applicant’s solicitor, Miss Nash, a copy of which was sent to him.  This letter concerns the preparation of the appeal books in respect of the dismissed review of the Registrar’s refusal to set aside the bankruptcy notice and has nothing to do with the creditor’s petition or the present motion.  Other statements made by Mr Tsekouras suggested that he had been told by the registry to file this motion and produce the affidavit referred to.

7. Nothing that Mr Tsekouras has told me in court has been able to elucidate the cryptic phraseology of the motion so as to identify what the Court could conceivably do at this time in the unheard and uncompleted creditor’s petition proceedings to meet his concerns.  If I assume that what the motion is seeking is some form of order for costs – either a fresh order or an order in substitution for some previous order for costs as yet unidentified – all I can say is that it cannot be granted at this time because the motion is filed in proceedings which are as yet incomplete and as to which, as far as I can see from the file, no orders for costs have yet been applied for or made.  For those reasons the motion must be dismissed.

   [AFTER DISCUSSION]

8. I order that the respondent pay the applicant’s costs of the motion.  I direct that the Registry not give any verbal advice or information to Mr Tsekouras in future but place any advice or information they wish to give him in writing.  I make that order because Mr Tsekouras is claiming here that he has proceeded with this motion on the basis of advice received from the Registry as he expresses it.  No such advice could conceivably have been given but it may be a result of a misunderstanding by him of what he was told, perhaps through difficulties with the language and the legal concepts involved.  In the circumstances it is not desirable that the Registry give any information or advice to Mr Tsekouras other than in writing so that whatever is said can be objectively checked and considered. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:            2 May 2000

Solicitor for the Applicant:	Ms S Nash of Sally Nash & Co
The Respondent appeared in person
Date of Hearing:	2 May 2000
Date of Judgment:	2 May 2000