Fitzgerald & Maryvell Investments Pty Ltd v Velissaris & Anor

[2008] VSC 132

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4120  of 2008

LAURENCE ANDREW FITZGERALD (in his capacity as liquidator of Maryvell Investments Pty Ltd (ACN 080 327 073) (in liquidation)	First Plaintiff
MARYVELL INVESTMENTS PTY LTD (ACN 080 327 073) (in liquidation)	Second Plaintiff
v
GEORGE VELISSARIS	First Defendant
THE REGISTRAR OF TITLES	Second Defendant

---

JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2008
DATE OF RULING:	23 January 2008
CASE MAY BE CITED AS:	Maryvell Investments Pty Ltd v Velissaris (Ruling)
MEDIUM NEUTRAL CITATION:	[2008] VSC 132

---

REAL PROPERTY – Application for removal of caveat – Application for an adjournment – Inability to obtain legal representation – Access to documents – Delay prejudicial to unsecured creditors – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	D T Forbes	Robert James Lawyers
For the Defendant	George Velissaris (in person)

HIS HONOUR:

1. This is an application by George Velissaris, the first named defendant in this proceeding, for a further adjournment of the plaintiffs’ application for the removal of a caveat over the property the subject of the proceeding. 

1. Mr Velissaris said that after appearing before Forrest J on 15 January 2008, he sought to retain Mr Efron, a solicitor. He produced a letter from Mr Efron dated 16 January 2008 in which Mr Efron made it clear that he would act for Mr Velissaris on certain conditions, the principal one of which was that cleared funds be placed in his trust account amounting to $9900.  A second letter from Mr Efron tendered by Mr Velissaris is dated today. It is to be inferred from that letter that Mr Efron did not regard himself as having been put in funds until 21 January 2008, that is to say two days ago, the reason being almost certainly that last week Mr Velissaris gave him a personal cheque which took some time to clear.

1. The orders made by Forrest J were that Mr Velissaris have leave to serve affidavits in support of his case by 22 January and that he have leave, notwithstanding shortness of time, to issue subpoenas by the same date.  He  issued those subpoenas himself yesterday, that is to say 22 January, and served at least one of them.

1. Mr Velissaris applied for an adjournment of at least three weeks and he put that application on three specific grounds.  First, he said that it is impossible to find a barrister who will take his case for him.  In support of that, he said that he had telephoned various barristers and they had declined or been unable to take the case and that they are “all on holidays.”  In the absence of evidence from barristers’ clerks, I do not accept that contention.  There are, working in this Court and in the Federal Court a large number of counsel, even though it is January. In any event, I have never known in my experience it to be impossible to obtain an appropriate barrister if someone really tries.  I do not accept Mr Velissaris’ assertion that he has tried.

1. The second point that Mr Velissaris raised is that he needed “the documents” in order to prepare his case.  The interest he claims is a fee simple in equity in the property, as it is the subject of a constructive or resulting trust. However, at no stage has any material whatsoever been put before any court, as far as I can see (having read all of the material that has been filed by the plaintiffs in this case) in which any explanation of that claim has ever been made.  Indeed, it was first made only when the caveat was lodged on 13 December 2007.

1. Forrest J in his judgment refused Mr Velissaris the adjournment he sought on the ground that the continued delay in this case was prejudicial to unsecured creditors, whose chance of obtaining payment of their debts is rapidly being diminished by the accrual of continuing legal and liquidator’s costs. Any further delay will doubtless increase costs.  One has only to look at the massive amount of litigation which has already been generated by this case, to see that that this is almost irrefutable.  Mr Velissaris has been ordered to pay costs on a number of occasions by various courts, which costs have not been paid.

1. The third reason given by Mr Velissaris is really a compendious reason: that he has been denied natural justice and that in the interests of justice he must be given an adjournment. 

1. It is unfortunate that Mr Velissaris has had no legal advice, but one suspects, having regard to previous decisions of judges in this proceeding and in other proceedings to which Mr Velissaris has been a party[1], that if he had received legal advice, it would not be advice which would give him much comfort.  Be that as it may, he is entitled to plead his case unrepresented.  That he has done in applying for an adjournment.

   [1]These decisions are summarised in Fitzgerald & Anor v Velissaris & Anor [2008] VSC 19.

1. Unfortunately, in this instance the interests of the unsecured creditors must prevail.  As Forrest J said, it is in the interest of justice that this matter be determined as quickly as possible. I agree.  The application for an adjournment is refused and the matter will proceed.