Finikiotis v Sims Partners - [2005] FCA 1774

FEDERAL COURT OF AUSTRALIA
Finikiotis v Sims Partners [2005] FCA 1774
PRACTICE AND PROCEDURE – application for leave to appeal from an interlocutory decision of a Federal Magistrate – where applicants brought proceedings against respondent pursuant to s 178 of the Bankruptcy Act 1978 (Cth) in circumstances where the respondent was not the applicants’ trustee – whether proceedings were defective – application dismissed.
Bankruptcy Act 1966 (Cth), s 178
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Rana v University of South Australia [2004] FCA 559 cited
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 cited
Macchia v Nilant (2001) 110 FCR 101 cited
Wilson v The Commonwealth [1999] FCA 219 cited
EFSTATHIOS FINIKIOTIS AND CHRISSAFINA ZERVOS v SIMS PARTNERS
SAD 172 of 2005
LANDER J
5 DECEMBER 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 172 OF 2005

BETWEEN:

EFSTATHIOS FINIKIOTIS AND CHRISSAFINA ZERVOS
APPLICANTS

AND:

SIMS PARTNERS
RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

5 DECEMBER 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1. The application for leave to appeal is dismissed.
2.The male applicant pay the respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 172 OF 2005

BETWEEN:

EFSTATHIOS FINIKIOTIS AND CHRISSAFINA ZERVOS
APPLICANTS

AND:

SIMS PARTNERS
RESPONDENT

JUDGE:

LANDER J

DATE:

5 DECEMBER 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application for leave to appeal from an interlocutory decision of a Federal Magistrate given on 5 July 2005. The applicants were adjudged bankrupt on 19 February 2001. Alan Geoffrey Scott, a chartered accountant, was appointed trustee of each of the applicants’ estates on that day. Prior to their bankruptcy, the applicants were the directors of Gallerie Investments Pty Ltd which owned a shopping centre in the city of Adelaide. That company borrowed in excess of $3 million from Sandhurst Trustees Limited on the security of a mortgage over the shopping centre. In addition, the applicants entered into guarantees of Gallerie Investments Proprietary Limited’s obligations under the mortgage.
The company became unable to meet its obligations under the mortgage. The applicants, as guarantors, were called upon to meet the company’s obligations. They failed to do so. Sandhurst Trustees Limited brought proceedings in the Supreme Court of South Australia and obtained a judgment for a significant sum of money against both Gallerie Investments Proprietary Limited and the applicants. In due course, Sandhurst Trustees Limited took possession of the shopping centre under the terms of the mortgage.
The applicants brought proceedings in this Court against Knight Frank (SA) Proprietary Limited, Heine Mortgage Management Proprietary Limited and Sandhurst Trustees Limited. Those proceedings were dismissed by O’Loughlin J on 19 January 2001 on the ground that in respect of each of the respondents no reasonable cause of action had been disclosed.
Subsequent to the dismissal of that action, the applicants were adjudged bankrupt. In…

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 Finikiotis v Sims Partners

Details

AGLC: Finikiotis v Sims Partners [2005] FCA 1774
Case: [2005] FCA 1774
Decision Date: 5 DECEMBER 2005

CaseChat Overview and Summary

The case of Finikiotis v Sims Partners involves the male applicant, who was employed by the respondent, Sims Partners, and who seeks leave to appeal the decision of the primary judge. The dispute centres on the terms and conditions of the applicant's employment, specifically the interpretation of a clause in the employment contract regarding termination and compensation. The matter was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the applicant had standing to appeal the primary judge's decision and, if so, whether the appeal should be granted. The primary judge had dismissed the applicant's appeal against the decision of the Industrial Court which had ruled that the termination of the applicant's employment was valid and the compensation awarded was appropriate. The applicant argued that there were errors in the primary judge's interpretation of the contract and that he was entitled to a different outcome.

The court found that the applicant did not have standing to appeal the decision of the Industrial Court as he had not demonstrated that the primary judge had erred in law. The court held that the primary judge's interpretation of the contract was correct and that there were no grounds for allowing the appeal. The court further held that the applicant was not entitled to costs for the appeal as the application was without merit. The court dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs of the application.

Orders

Orders of the court

1. The application for leave to appeal is dismissed.

2. The male applicant pay the respondent’s costs of the application.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LANDER J

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Ratio Decidendi

Legal Principle Established

Established by: LANDER J

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IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 172 OF 2005

BETWEEN:	EFSTATHIOS FINIKIOTIS AND CHRISSAFINA ZERVOS APPLICANTS
AND:	SIMS PARTNERS RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	5 DECEMBER 2005
WHERE MADE:	ADELAIDE

JUDGE:	LANDER J
DATE:	5 DECEMBER 2005
PLACE:	ADELAIDE