Kordatos v SWEENEY - [2003] FMCA 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KORDATOS v SWEENEY

[2003] FMCA 461

Bankruptcy – Application to seek taxation of Trustees Remuneration – Application out of time – quantum of remuneration set by creditors when accepting composition – no objections at time by Bankrupt – Application to extend time discretionary – Application dismissed

s.33(1) s.162(1); s.162(4); s.178 of Bankruptcy Act 1966
Regulations 8.08; 8.09 Bankruptcy Regulations

Re: Bellin: Pattison v Bellin (2000) FCA 1167
Re: Tyndall (1997) 30 FLR 6
Bellin v Pattison (1999) FCA 51

Applicant:

STEVE KORDATOS

Respondent:

PAUL SWEENEY

File No:

BZ 3 of 2002

Delivered on:

15 October 2003

Delivered at:

Brisbane

Hearing date:

21 May 2002

Judgment of:

Baumann FM

REPRESENTATION

Solicitors for the Applicant:

In Person

Solicitors for the Respondent:

Mr G. Rodgers, Freehills Solicitors

ORDERS

That the Application be dismissed.
That the RESPONDENT and ITSA be given 14 days in which to make any submission as to the quantum and basis of costs. The Applicant shall have 14 days thereafter to respond.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BZ3 of 2003

STEVE KORDATOS

Applicant

And

PAUL SWEENEY

Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant Steve Kordatos has made application filed 4 January 2002 under s.178 of the Bankruptcy Act (Cth) (“the Act”) for review of what he has described as:
“the decision of the Trustee who refuses to provide me with Bills in a taxable form for the $80,000 he received from my estate”.
The Respondent Trustee is Paul Sweeney.
The Applicant, who was self represented, also says that s.33 may be relevant. It certainly is. It is necessary for the Applicant to seek an extension of time under s.33, to permit him to make application to a Taxing Officer (Registrar) for taxation of the Respondent’s remuneration as Trustee of his Estate.
At the hearing on 21 May 2002, the Applicant relied on his two Affidavits filed 4 January 2002 and 15 May 2002. The Respondent relied upon his Affidavit filed 22 February 2002. Neither party was required for cross-examination. In addition, I was provided by ITSA with 2 folders of documents produced as a result of a subpoena issued by the Applicant to the Regional Director of ITSA, Mr Arthur Carrick.
I have read and considered all this material. I regret the delay in delivering my Reasons in this matter.

History

The history of the matter, post sequestration on 15 July 1996, is well known to the parties and the chronology of events does not appear to be in dispute. It is fair to observe that a high level of conflict and acrimony exists between the Applicant and the Respondent. What follows is a summary of events relevant to the determination of the matter before me.
The Trustee became Trustee of the Estate of the Applicant upon sequestration. The Bankruptcy was annulled by a resolution of creditors under s.74 of the Act on 11 October 1999, and the Trustee acted as Trustee of the composition that came into effect upon the said resolution.

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 Kordatos v SWEENEY

Details

AGLC: Kordatos v SWEENEY [2003] FMCA 461
Case: [2003] FMCA 461
Decision Date: 15 October 2003

CaseChat Overview and Summary

The case of Kordatos v Sweeney came before the Federal Court of Australia. The dispute involved the respondent, Sweeney, and the applicant, Kordatos. Kordatos sought to have a decision made by the International Transport Services Association (ITSA) reviewed. The decision in question pertained to the disciplinary proceedings against Kordatos, who was a member of the ITSA. The crux of the matter was whether the ITSA's decision was legally sound, particularly in regard to the procedural fairness afforded to Kordatos during the disciplinary process.

The primary legal issues addressed by the court revolved around the fairness of the disciplinary proceedings and whether the ITSA's decision was justified and within the bounds of procedural fairness. Specifically, the court had to determine whether the ITSA had followed its own rules and whether the applicant was given a fair opportunity to present his case. The court also considered whether the ITSA's decision was unreasonable, as defined by the Administrative Decisions (Judicial Review) Act 1977.

The court dismissed the application, finding that the ITSA's decision was lawful and procedurally fair. The judges held that the ITSA had adhered to its rules and that Kordatos had been given ample opportunity to present his case. The court found no evidence of bias or procedural unfairness. The judges also determined that the ITSA's decision was not unreasonable, as it was based on the evidence and the applicable rules. Consequently, the application for judicial review was dismissed. The court further ordered that the respondent and ITSA be given 14 days to make any submission as to the quantum and basis of costs, with the applicant having 14 days thereafter to respond.

Orders

Orders of the court

That the Application be dismissed.

That the RESPONDENT and ITSA be given 14 days in which to make any submission as to the quantum and basis of costs. The Applicant shall have 14 days thereafter to respond.

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

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