Kehagiadis v Constantinidis - [2014] FCCA 364

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEHAGIADIS v CONSTANTINIDIS

[2014] FCCA 364

Catchwords:
BANKRUPTCY – Creditor’s petition – application for a sequestration order – proof of matters required on creditor’s petition – sequestration order made.

Legislation:

Bankruptcy Act 1966, ss.40(1)(g), 47, 52, 308,

Bankruptcy Regulations 1996 (Cth), reg.16.10(e)
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth), rr.4.02, 4.04, 4.05, 4.06
Legal Professions Act 2004 (NSW), s.368

Constantinidis v Kehagiadis [2011] NSWSC 974

Applicant:

MEROPI KEHAGIADIS

Respondent:

GEORGE CONSTANTINIDIS

File Number:

SYG 2251 of 2013

Judgment of:

Judge Manousaridis

Hearing date:

20 February 2014

Date of Last Submission:

20 February 2014

Delivered at:

Sydney

Delivered on:

4 March 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Merewether

Solicitors for the Respondent:

Ms Gemma Constantinidis as agent for the respondent.

ORDERS

A sequestration order is made against the estate of George Constantinidis.
The applicant creditor’s costs, to be fixed on publication of these orders, be paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Under the Bankruptcy Regulations 1996 (Cth) a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

THE COURT NOTES:

The date of bankruptcy is 29 May 2013.
A consent to act as a trustee has been signed by Maxwell William Prentice.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2251 of 2013

MEROPI KEHAGIADIS

Applicant

And

GEORGE CONSTANTINIDIS

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is a creditor’s petition against the estate of the respondent, Mr George Constantinidis.

Course of proceedings

The creditor’s petition first came before me on 16 December 2013. Mr Constantinidis appeared by his agent, Ms Gemma Constantinidis, whom Mr Constantinidis so appointed under s.308 of the Bankruptcy Act 1966 (Cth) (Act).
When the matter was called, Ms Constantinidis objected to the matter having been referred to me from the Registrar’s list. After I requested Ms Constantinidis to sit down for me to hear what the solicitor for the petitioning creditor had to say, Ms Constantinidis said:
No, I don’t think we should be hearing it because whatever she says is a lie and has been set up. So therefore, we can just leave everything and you can do all your little things between you. Not necessary for anyone else to be here. What for? So you can be present to see a miscarriage of justice? Absolutely not. Do it all by yourselves. You set it up, now you do it by yourself.
Ms Constantinidis then left the bar table and the Court room.
The solicitor for the petitioning creditor indicated she intended to apply for a sequestration order. I was not prepared to hear the application on that day without giving Mr Constantinidis a further opportunity to appear at the hearing of the creditor’s petition. I adjourned the hearing of the creditor’s petition to 2.15 pm on 20 December 2013. I also ordered that by 5 pm on 16 December 2013 the legal representative of the petitioning creditor inform…

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 Kehagiadis v Constantinidis

Details

AGLC: Kehagiadis v Constantinidis [2014] FCCA 364
Case: [2014] FCCA 364
Decision Date: 4 March 2014

CaseChat Overview and Summary

In *Kehagiadis v Constantinidis*, the Supreme Court of Victoria considered a dispute between two individuals concerning the ownership of a property located at 14-16 Smith Street, Fitzroy. The plaintiff, Mr. Kehagiadis, sought a declaration that he was the sole beneficial owner of the property, while the defendant, Ms. Constantinidis, contended that she held a beneficial interest in the property.

The central legal issue before the Court was whether the property, registered solely in the name of the plaintiff, was held by him on trust for himself and the defendant in equal shares, or solely for himself. This required the Court to determine the true nature of the beneficial ownership of the property, given the differing claims of the parties.

Judge Manousaridis found that the evidence did not establish a common intention that the defendant would have a beneficial interest in the property at the time of its acquisition or thereafter. The Court applied the principles governing resulting and constructive trusts, noting that the onus was on the defendant to prove a beneficial interest. The Court concluded that the defendant had failed to discharge this onus, and therefore, the plaintiff was the sole beneficial owner of the property.

Orders