FEDERAL COURT OF AUSTRALIA
Kattirtzis v Zaravinos
[2001] FCA 1158Bankruptcy Act 1996 (Cth) s 58(3)
Conveyancing Act 1919 (NSW) s 37AGEORGE KATTIRTZIS and NICK HOUVRADAS v GEORGE ZARAVINOS
N 7381 OF 2001GYLES J
SYDNEY
28 AUGUST 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7381 OF 2001
BETWEEN:
GEORGE KATTIRTZIS
FIRST APPLICANTNICK HOUVRADAS
SECOND APPLICANTAND:
GEORGE ZARAVINOS
RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
28 AUGUST 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave be granted to George Kattirtzis and Nick Houvardas to take all necessary steps in proceeding 4177 of 1999 in the Supreme Court of New South Wales (“the Proceeding”), the proceedings nunc pro tunc as from 21 February 2000.
2.Leave to take all necessary fresh steps in the Proceeding hereafter pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) on the following conditions:
(a)leave is restricted to the proceeding for recovery of property as identified in the Proceeding and is not to include any claims for damages or other monetary relief against the bankrupt, George Zaravinos;
(b)that the applicants, by their counsel, undertake to the court that:
(i)in the Proceeding they will restrict relief sought to recovery of the properties identified as aforesaid;
(ii)will not seek final relief without having given seven days notice to the office of the Official Trustee;
(iii)will not oppose any application by the Official Trustee to be joined in the said Proceeding at any time; and
(iv)will ensure, by appropriate means, that the benefit of an order obtained in relation to recovery of the said properties of any of them will be received by the Official Trustee to be held on behalf of the bankrupt estate.
3.Leave be granted without prejudice to the determination of the issues of substance which arise in the Proceeding
4. The applicant pay the costs of the Official Trustee.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 7381 OF 2001
BETWEEN:
GEORGE KATTIRTZIS
FIRST APPLICANTNICK HOUVRADAS
SECOND APPLICANTAND:
GEORGE ZARAVINOS
RESPONDENT
JUDGE:
GYLES J
DATE:
28 AUGUST 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT (EX TEMPORE)
This is an application that leave be granted to the applicants who are the plaintiffs in Supreme Court proceeding 4177 of 1999 (“the Supreme Court Proceeding”) pursuant to s 58(3) of the Bankruptcy Act 1996 (Cth) (“the Act”) for leave now to regularise the steps which have been taken in those proceedings as from 21 February 2000 and leave to take all necessary fresh steps in the proceedings hereafter.
A short chronology of events is as follows. The District Court handed down judgment on 7 October 1998. The impugned transactions were in 1997 and 1998. An application under s 37A of the Conveyancing Act 1919 (NSW) in the Supreme Court was before that court first on 1 October 1999 and an order was made on that date.…
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- Case
- [2001] FCA 1158
- Decision Date
CaseChat Overview and Summary
The legal issues at hand centred on the interpretation and application of section 58(3) of the Bankruptcy Act 1966 (Cth), which governs the recovery of property from a bankrupt. The applicants sought to recover specific properties and were restricted from claiming damages or other monetary relief against the bankrupt. The court had to determine whether the applicants' proposed conditions were sufficient to ensure that any benefit from the recovery of the properties would ultimately be held for the benefit of the bankrupt estate, and whether the leave should be granted without prejudice to the determination of the substantive issues.
The court found that the applicants had demonstrated a clear intention to pursue the recovery of the specified properties and had agreed to conditions that would protect the interests of the Official Trustee and the bankrupt estate. The court was satisfied that the applicants' undertakings would ensure that any recovery would be for the benefit of the estate, and granted the leave as requested. The decision allowed for the proceedings to be treated as if they had commenced on 21 February 2000, and permitted the applicants to proceed with their claims for the recovery of the identified properties under the specified conditions. The applicants were also ordered to pay the costs of the Official Trustee.
In summary, the court granted the applicants leave to proceed with their action for the recovery of specified properties from the bankrupt, subject to conditions that ensured the benefit of any recovery would be held for the benefit of the estate. The decision allowed the proceedings to be treated as if they had commenced on the specified date and permitted the applicants to proceed with their claims under the outlined conditions.
Orders
Orders of the court
1. Leave be granted to George Kattirtzis and Nick Houvardas to take all necessary steps in proceeding 4177 of 1999 in the Supreme Court of New South Wales (“the Proceeding”), the proceedings nunc pro tunc as from 21 February 2000.
2. Leave to take all necessary fresh steps in the Proceeding hereafter pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) on the following conditions:
(a) leave is restricted to the proceeding for recovery of property as identified in the Proceeding and is not to include any claims for damages or other monetary relief against the bankrupt, George Zaravinos;
(b) that the applicants, by their counsel, undertake to the court that:
(i) in the Proceeding they will restrict relief sought to recovery of the properties identified as aforesaid;
(ii) will not seek final relief without having given seven days notice to the office of the Official Trustee;
(iii) will not oppose any application by the Official Trustee to be joined in the said Proceeding at any time; and
(iv) will ensure, by appropriate means, that the benefit of an order obtained in relation to recovery of the said properties of any of them will be received by the Official Trustee to be held on behalf of the bankrupt estate.
3. Leave be granted without prejudice to the determination of the issues of substance which arise in the Proceeding
4. The applicant pay the costs of the Official Trustee.
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
Established by: GYLES J
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