Kyriakopoulou v Crock

FEDERAL COURT OF AUSTRALIA

Kyriakopoulou v Crock [2000] FCA 1762

MELPOMENI KYRIAKOPOULOU v HENRY V CROCK and MARY CROCK

V 366 of 2000

RYAN, KIEFEL and MARSHALL JJ
MELBOURNE
7 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 366 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MELPOMENI KYRIAKOPOULOU
Appellant

AND:

HENRY V CROCK
First Respondent

AND

MARY CROCK
Second Respondent

JUDGES:

RYAN, KIEFEL and MARSHALL JJ

DATE OF ORDER:

7 DECEMBER 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The respondents’ costs of the appeal be taxed and paid out of the estate of the bankrupt as part of their costs as petitioning creditors.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 366 of 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MELPOMENI KYRIAKOPOULOU
Appellant

AND:

HENRY V CROCK
First Respondent

AND

MARY CROCK
Second Respondent

JUDGES:	RYAN, KIEFEL and MARSHALL JJ
DATE:	7 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from a sequestration order made by a single Judge of the Court on 10 May 2000.  The creditors’ petition on which the order was made relied on non-compliance with a bankruptcy notice claiming that the appellant was indebted to the respondents in the sum of $92,518.67, certified by the Taxing Registrar of the County Court of Victoria as the amount at which he had taxed the second and third defendants’ costs pursuant to an order of  Judge Morrow of that Court made on 14 October 1998.  There had been three defendants in the action in the County Court, the first of which had been the Mercy Private Hospital.  The petitioning creditors were the second and third defendants who had been represented jointly by the same Counsel and solicitors.  There was a lengthy trial before a Judge and jury in which the appellant claimed damages for physical and psychiatric injuries allegedly caused by the negligence of one or more of the defendants.  At the end of the trial, the jury found that none of the defendants had been guilty of negligence and the learned trial Judge on 2 October 1998 pronounced judgment for the defendants.  His Honour then went on to say:

   “I will order that the plaintiff pay the first defendant’s costs, to be taxed on scale D with a certificate for 11 refreshers and that the plaintiff pay the second and third defendants’ costs, to be taxed on scale D with a certificate for 11 refreshers.”

2. A form of order was drawn up by the solicitors for the first defendant, the Mercy Private Hospital, and authenticated under the seal of the Registrar of the County Court on 23 November 1998.  That order was in these terms:

   “THE JUDGMENT OF THE COURT IS THAT:

   1.        Judgement for the Defendants.

   2.The Plaintiff to…