Kattirtzis v Zaravinos - [2001] FCA 1158

FEDERAL COURT OF AUSTRALIA
Kattirtzis v Zaravinos
[2001] FCA 1158
Bankruptcy Act 1996 (Cth) s 58(3)
Conveyancing Act 1919 (NSW) s 37A
GEORGE KATTIRTZIS and NICK HOUVRADAS v GEORGE ZARAVINOS
N 7381 OF 2001
GYLES J
SYDNEY
28 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7381 OF 2001

BETWEEN:

GEORGE KATTIRTZIS
FIRST APPLICANT

NICK HOUVRADAS
SECOND APPLICANT

AND:

GEORGE ZARAVINOS
RESPONDENT

JUDGE:

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 APPLICANT

NICK HOUVRADAS
SECOND APPLICANT

AND:

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.…

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.

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Details

Case: [2001] FCA 1158
Decision Date: 28 AUGUST 2001

CaseChat Overview and Summary

The matter of Kattirtzis v Zaravinos was heard before the Supreme Court of New South Wales, involving a dispute between George Kattirtzis and Nick Houvardas, who sought to recover certain properties from the bankrupt, George Zaravinos. The applicants aimed to proceed with their action in the Supreme Court, which had been originally filed in 1999, but was not pursued due to the bankruptcy of the defendant. The court was tasked with deciding whether to grant leave for the applicants to take necessary steps in the proceedings, specifically concerning the recovery of identified properties, and whether this should be done nunc pro tunc, as if the proceedings had commenced on a specified date.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GYLES J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GYLES J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7381 OF 2001

BETWEEN:	GEORGE KATTIRTZIS FIRST APPLICANT NICK HOUVRADAS SECOND APPLICANT
AND:	GEORGE ZARAVINOS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	28 AUGUST 2001
WHERE MADE:	SYDNEY

JUDGE:	GYLES J
DATE:	28 AUGUST 2001
PLACE:	SYDNEY