J Collins Transport Pty Ltd v Macks

[2006] FMCA 1475

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J COLLINS TRANSPORT PTY LTD v MACKS & ORS [2006] FMCA 1475

BANKRUPTCY –Where no appearance by second respondents − where default judgment previously awarded against second respondents.

COSTS − Assessment − solicitor and client basis.

Bankruptcy Act 1966, s.139ZQ

Applicant: J COLLINS TRANSPORT PTY LIMITED

First Respondent: PETER IVAN MACKS AS TRUSTEE FOR THE BANKRUPT ESTATES OF EFSTRATIOS VALAMIOS AND CONSTANTINA VALAMIOS

Second Respondents: GEORGE VALAMIOS AND CHRIS VALAMIOS

File Number: ADG 290 of 2003

Judgment of: Raphael FM

Hearing date: 26 September 2006

Date of Last Submission: 26 September 2006

Delivered at: Adelaide

Delivered on: 26 September 2006

REPRESENTATION

Counsel for the Applicant: Mr A. Dalcin

Solicitors for the Applicant: Minicozzi & Co

Counsel for the Respondent: No appearance

ORDERS

1. The second respondents to pay to the applicant the sum of $100 000, together with the applicant’s costs of these proceedings to be taxed if not agreed on a solicitor and client basis according to the Bankruptcy Rules 2006.

2. There be liberty to apply for the purposes of filing agreed notices of discontinuance between the applicant and the first respondent.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 290 of 2003

J COLLINS TRANSPORT PTY LIMITED

Applicant

And

PETER IVAN MACKS AS TRUSTEE

First Respondent

GEORGE VALAMIOS AND CHRIS VALAMIOS
Second Respondents

REASONS FOR JUDGMENT

1. This is the first of two sets of proceedings in which I am requested to give judgment for damages to be assessed against two respondents, George and Chris Valamios, who are the sons of two bankrupts, Efstratios Valamios and Constantina Valamios, who, prior to their bankruptcy, ran a fruit and vegetable business out of the Sydney Fruit Market at Flemington.

2. The two bankrupts were indebted to their creditors for very considerable sums of money and upon the realisation of this fact, left the country for Greece. Prior thereto, certain transactions between the bankrupts and their sons had taken place. The applicant had provided produce to the bankrupts and had received monies on their behalf that it was later required to disgorge to the trustee pursuant to the service of a s.139ZQ notice on 26 November 2003. The amount involved was $100,000.

3. A more detailed history of the proceedings, which have been lengthy and complex but which, to the credit of all parties, have been disposed of without the necessity of a trial, is set out in the submissions of the applicant, prepared by Mr Dalcin and filed by the applicant's solicitors on 25 September 2006.  Those submissions will remain with the papers, but they form the basis upon which I am prepared to make an order against the second respondents, who have at no time appeared before me and who do not appear today, although notice of this application was served upon them and their names were called outside the court.

4. I have read through the submissions and the affidavits of

   
   

   Mr McGregor,  Mr Minicozzi and Mr Lewis, which are referred to therein.  I am satisfied that the applicant's submissions accurately set out the situation in relation to the various proceedings which are referred to, all of which have come before me at one time or another since their commencement.

5. I am satisfied that having given judgment on 5 July 2006 against the second respondents by default, the second respondents have a liability to the applicant and that the sum claimed is the appropriate sum for which judgment should be given.  In those circumstances, I order that George Valamios and Chris Valamios pay to J. Collins Transport Pty Limited the sum of $100 000.00, together with the applicant's costs of these proceedings, to be taxed, if not agreed on a solicitor and client basis, according to the Bankruptcy Rules 2006.

6. I make the additional order that there be liberty to apply for the purposes of filing agreed notices of discontinuance between the applicant and the first respondent. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate: 

Date: