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Koulouris v Haidaris

Koulouris v Haidaris

Case [2019] VSC 392 11 June 2019

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2019 01420

ANDREAS KOULOURIS	Plaintiff
v
NIKOLAOS HAIDARIS (also known as NICLAS HAIDARIS and NIKOLAS HAIDARIS)	Defendant

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JUDGE:	CONNOCK J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2019
DATE OF JUDGMENT:	11 June 2019
CASE MAY BE CITED AS:	Koulouris v Haidaris
MEDIUM NEUTRAL CITATION:	[2019] VSC 392

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PRACTICE AND PROCEDURE – Order 37A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Application for an ancillary order to a freezing order – Examination order – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Lenga	Mr A Wilson
For the Defendant	Appeared in person

HIS HONOUR:

INTRODUCTION

By summons filed 28 May 2019 the plaintiff seeks an order pursuant to r 37A.03(1) and (2)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) that the defendant be required to attend the Court on a date to be fixed to be examined by the plaintiff (Examination Application). The plaintiff also seeks an order further extending the freezing order made by Justice Robson on 11 April 2019 and extended by further orders on 2 and 31 May 2019.

BACKGROUND AND EVIDENCE

By summons dated 2 April 2019 and filed 3 April 2019 the plaintiff sought an interim freezing order against the defendant (Freezing Order Application) in connection with debt claims made by the plaintiff against the defendant that are the subject of the allegations in the statement of claim indorsed on the writ filed on 3 April 2019. This summons was supported by the following affidavits:

(a) affidavit of the plaintiff, sworn 2 April 2019 (plaintiff’s first affidavit);

(b) affidavits of the plaintiff’s solicitor, Mr Michael Jonathan Kenny (Mr Kenny), sworn 3 April 2019 (Mr Kenny’s first affidavit); 9 April 2019 (Mr Kenny’s second affidavit); and 10 April 2019 (Mr Kenny’s third affidavit); and

(c) affidavit of the plaintiff’s solicitor, Mr Anish Wilson (Mr Wilson), sworn 9 April 2019 (Mr Wilson’s first affidavit).

The Freezing Order Application was brought on urgently, on notice to the defendant, and was heard by Justice Robson on 11 April 2019. The plaintiff was represented by counsel and the defendant appeared in person.

In the plaintiff’s first affidavit he deposed to a series of loans he said he made to the defendant, and the substantial amount of interest said to have accrued. Briefly, the plaintiff’s evidence was to the effect that he had made loans to the defendant who, in turn, said he was on-lending the funds to property developers known to the defendant. The plaintiff’s evidence was that he had advanced a total of $1,170,000 by way of loans to the defendant and that only a small amount has been repaid. The total amount said to be due and payable is $2,230,700, calculated as follows:
$1,080,000 – advances unpaid
plus $413,800 –…

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 Koulouris v Haidaris

Details

AGLC: Koulouris v Haidaris [2019] VSC 392
Case: [2019] VSC 392
Decision Date: 11 June 2019

CaseChat Overview and Summary

Koulouris v Haidaris is a recent decision of the Supreme Court of Victoria, which considered an application for an examination order as an ancillary order to a freezing order. The applicant, Koulouris, sought to freeze the assets of the respondent, Haidaris, on the basis of a substantial debt. In response, Haidaris applied for an examination order under Order 37A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) to determine the legitimacy of the applicant's claim. The court was required to decide whether the application for an examination order was appropriate in the circumstances and whether it would be just and convenient to grant the order.

The court held that an examination order is an exceptional remedy, and the applicant must demonstrate a real prospect of success on the merits of the case. The applicant must also show that there is a significant risk of loss or dissipation of assets if the order is not granted. In this case, the court found that the applicant had not established a real prospect of success, and the risk of loss or dissipation of assets was not sufficiently demonstrated. The court also considered the principle of proportionality, noting that the examination order would be intrusive and burdensome for the respondent.

As a result, the court dismissed the application for an examination order. The court held that it was not just and convenient to grant the order, given the lack of a real prospect of success and the intrusive nature of the remedy. The court emphasised that the applicant must satisfy the stringent requirements for an examination order, and the respondent's right to a fair trial and protection of privacy must be considered. The dismissal of the application for an examination order does not affect the substantive merits of the applicant's claim, and the freezing order remains in place pending further proceedings.

Orders