Mannis v Official Receiver, I.T.S.A - [2003] FMCA 228

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MANNIS v OFFICIAL RECEIVER, I.T.S.A.

[2003] FMCA 228

BANKRUPTCY – Annulment agreement to subpoena witness not granted where the Court was likely to exercise its decision in favour of the applicant – application dismissed.

Bankruptcy Act 1966 (Cth), s.153B

Stankiewicz v Plato (2000) FCA 1185

Applicant:

GARY MANNIS

Respondent:

OFFICIAL RECEIVER, INSOLVENCY & TRUSTEE SERVICE AUSTRALIA

File No:

MZ 1144 of 2002

Delivered on:

22 April 2003

Delivered at:

Melbourne

Hearing Date:

22 April 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Mannis in person

Solicitors for the Applicant:

Mr Mannis in person

Counsel for the Respondent:

Mr Lhuede

Solicitors for the Respondent:

Gardens Lawyers

ORDERS

That the Application filed 13 November 2002 for Annulment of Bankruptcy be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1144 of 2002

GARY MANNIS

Applicant

And

OFFICIAL RECEIVER, INSOLVENCY & TRUSTEE SERVICE AUSTRALIA

Respondent

REASONS FOR JUDGMENT

This Application comes before me by way of an application by Gary Mannis, who was formerly Agreros Gary Kachrimanis, pursuant to section 153B of the Bankruptcy Act 1966 (Cth) (“the Act”) to annul the bankruptcy.
The date of bankruptcy in this case was 10 March 1989. The application is somewhat unusual in that the sequestration order was made on the debtor's own petition. The Official Receiver is represented and has assisted with useful submissions in the matter but in relation to the application itself, neither opposes nor contends in favour of an order as sought.
The applicant has sought an adjournment of the hearing today to another date to enable him to call a number of witnesses. He has handed me up a schedule of seven witnesses he wishes to call and has indicated this morning that there are two other witnesses he would also like to call; that is, there would be nine witnesses in total. To the extent that an adjournment is sought, the Official Receiver opposes that adjournment and seeks that the court deal with the matter today.
In considering whether to adjourn the matter, it appears to me that I must look to the merits of the application itself because if it is unmeritorious on its face, then in my view it would constitute or be likely to constitute an abuse of process to allow the applicant to subpoena the various witnesses that he wishes to call.
The background to the matter is contained in the application of the applicant filed 13 November 2002, the report by the Official Receiver which is annexed to the affidavit of the Official Receiver filed 4 February 2003 and partly from the facts presented in submissions to me this morning which were not the subject of any dispute.
The background to the presentation of the debtor's petition is set out in the report by the Official Trustee. It appears that in June 1984 a company called 66th Jettison Pty Ltd was incorporated. The company traded as Greek-Australian promotions for the purpose of organising a tour by a Greek singer George Delaris. In September 1984 the applicant paid $45,000 to John Pollakis as consideration for a 25 per cent interest in the company 66th Jettison Pty Ltd. The applicant was appointed a director of the company on 11 December 1984. On 24 January 1985 Lampis Kachrimanis was appointed director and secretary of the company. On this date all other directors and secretaries with the exception of the bankrupt resigned. This left the bankrupt and his brother as the only directors and they each held a 50 per cent interest in the share capital of the company. About this time an amount in excess of $250,000 was borrowed either by the applicant or the company from the Westpac Bank in order to fund the tour by George Delaris. A number of concerts by George Delaris took place in Sydney and Melbourne in February 1985 and a substantial loss was made in regard to these concerts.
In 1987 when the applicant was in Paris he had a mental health problem. The Australian Embassy was involved in meeting with him and contacting his family in Australia. He was subsequently brought back to Australia by his family and during this time incurred some debts for accommodation.
On 21 December 1987 the Guardianship and Administration Board made an administration order in respect of the applicant, appointing State Trustees as administrator. That order remained in effect until at least 14 November 1991. It is common ground that it was in effect at the date of his bankruptcy on 10 March 1989. On 10 March 1989, the date of bankruptcy, the debtor's petition was accepted by the Official Receiver and a statement of affairs was accepted pursuant to the provisions of section 55 of the act. The applicant was discharged from bankruptcy by operation of law on 11 March 1992.
A report by the Official Trustee indicates that in his statement of affairs the bankrupt disclosed liabilities as follows: to A. Barbarou, $23,592; to A. Michelacopolis, $40,000; Eureka Finance Pty Ltd and Barronlos Pty Ltd, $290,000; Westpac MasterCard, $10,000. In the statement of affairs assets were disclosed, being the balance of an ANZ Bank account of $3000, cash of $200 and other property consisting of a stereo worth $2500.
The Official Receiver's report goes on to indicate what information was obtained by the Official Receiver following the sequestration order. At the time of the bankruptcy the applicant was employed as a shop assistant at the Pinewood Chicken Bar, a business operated by his family. The Official Trustee conducted land data searches in the applicant's name and the name of various companies. The trustee was not able to identify any real property in which the bankrupt himself held an interest. He was director and shareholder of a number of companies, some of which were trustees of various discretionary or unit trusts.
One company in which he was a director and shareholder was Eureka Finances Corporation Pty Ltd. This company was the trustee of a unit trust, the Kachrimanis Unit Trust. The report of the Official Trustee is that the activity of the trust appeared to be the development and lease of properties and the running of the Pinewood Chicken Bar. The report goes on to say that the units of this trust were subsequently held by a number of corporate trustees as trustee for family trusts. The bankrupt is named as a beneficiary of the Kachrimanis Family Trust which is a discretionary trust. The report says that a number of properties were registered in the name of Eureka Finances Corporation Pty Ltd and on advice received by the trustee during the administration, the Official Trustee believes that all of these properties were sold by the various mortgagees with an overall shortfall resulting.
As to the administration of the bankrupt's estate, the Official Receiver realised an amount of $3000 in the amount of a term deposit with the ANZ Bank. A proof of debt was lodged by Westpac Banking Corporation for $9214.27 in respect of advances and credit charges in relation to the MasterCard account operated by the bankrupt. No dividend was paid the bankrupt estate and some expenses were paid. A public examination pursuant to section 81 of the act was undertaken of Mr Harry Lampis Kachrimanis, who is the brother of the applicant, but no examination was taken of the bankrupt because at the time medical advice was submitted that his medical condition precluded the possibility of holding such an examination.
The position of the applicant is that he was, to put it in broad terms, taken advantage of by members of his family at the time of the presentation of the debtor's petition due to his ill health. It is not made clear in his application to what extent or precisely how that occurred. He contends, however, that his family took advantage of his fragile health position to persuade him to present a debtor's petition and to sign the statement of affairs as being accurate.
He contends that the accountant was a party to this arrangement and provided false information in the statement of affairs. He contends that the solicitor Mark Gray, who represented him and with whom he apparently attended the Federal Court, was in some manner involved. Again, the detail of that involvement is not clear. He also contends that Leo Dimos, who was the solicitor for the family, was also involved; again, in a manner which I am unclear about. He contends that the solicitor acting for Michelacopolis and Barbarou, to whom it was alleged money was owing, was also involved and that it was doubtful whether there was in fact any real liability to them.
He further contends that the Australian Government Solicitor was involved in that they were considering the matter for a period of about two years, presumably upon the complaint of the applicant, and failed to conclude their investigations as, with the effluxion of time, he was about to be released from bankruptcy in any event.
The persons that he seeks to call if the matter is adjourned to a hearing are his brother, who he contends took steps to orchestrate the bankruptcy; Mark Gray, the solicitor who acted for him; Harold Sztainbok and Mort Schwarzberg, who were the accountant and his partner involved in the preparation of the statement of affairs which he asserts was falsely prepared; Leo Dimos, who was the solicitor acting for the family; the solicitor acting for Michelacopolis and Barbarou; the Australian Government Solicitors to whom I have referred; and he would also like to call someone from the Guardianship Board to give evidence in relation to his medical condition and reasons for the guardianship order.
What is in effect being alleged by the applicant is that his family and others, including, it would appear, his solicitor, the accountants and other public officials to whom I have referred, were involved either directly or indirectly as the case may be, in a conspiracy. The conspiracy had the effect of persuading him that he should file his debtor's petition when he was in fact solvent, thereby in some unspecified way depriving him of income or assets to which he was entitled and, more particularly to the point of this application, putting him in a position where in reality the petition ought not to have been presented because he was solvent.
The asset he asserts that he had by reason of which he was not insolvent at the time the petition was presented was his interest in the Kachrimanis Unit Trust. He has provided as evidence a copy of the balance sheet for the unit trust at 30 June 1989. The balance sheet shows that the net assets of the trust were $50. However, the applicant asserts that the land and buildings which formed the major assets of the trust were valued at considerably more than the amount showing in the balance sheet and that one of the liabilities of $531,000 was not really a liability for which the trust was liable.
In the course of the submissions and indeed from the report of the Official Receiver, it seems that the assets of the trust were apparently sold by the mortgagee or the mortgagees as the case may be. The report says that:
“On advice received by the trustee during the administration,

I believe that all these properties were sold by various mortgagees with an overall shortfall resulting.”
The balance sheet certainly indicates that there were bank overdrafts to the ANZ. There was a loan to AGC of $1,366,204.
Furthermore, it is not entirely clear whether or not the applicant did have the 25 per cent interest in the Kachrimanis Unit Trust that he asserts. According to the report of the Official Trustee, the units were held by a number of corporate trustees as trustee for family trusts. Making the assumption that as it is a unit trust the various family trusts owned units in their own right in accordance with the indication of the applicant that he through his family trust had a 25 per cent interest, it appears that Kachrimanis Family Trust had a 25 per cent interest. The Official Trustee reports it as being a discretionary trust with the bankrupt as being simply a beneficiary.
No further information is provided as to whether the applicant was more than a discretionary beneficiary or whether he in some way controlled the trust to the effect that although it was a discretionary family trust, it was more likely than not that he would be entitled to all of the assets of the trust. I will assume for these purposes that he was effectively entitled to a 25 per cent interest through the Kachrimanis Family Trust of the units in the Kachrimanis Unit Trust.
Section 153B of the Bankruptcy Act provides that:
“If the court is satisfied that a sequestration order ought not to have been made or, in the case of a debtor's petition, that the petition ought not to have been presented or ought not to have been accepted by the Official Receiver, the court may make an order annulling the bankruptcy.”
It is not clear to me whether at the time of the presentation of the petition the Official Receiver was aware of the order of the Guardianship Board. Certainly the order of the board appears to have come to the notice of the Official Trustee during the course of the bankruptcy, but the petition was filed and presented with the statement of affairs in accordance with section 55 of the act and there is no evidence to suggest that the Official Receiver acted in any way improperly in accepting the petition or that he was required to make any further inquiries as to the fitness of the debtor to file the petition.
The real issue put on behalf of the applicant is not so much that the petition ought not to have been accepted by the Official Receiver but, rather, the petition ought not to have been presented because his medical condition and his state of mind was such that he was not capable of knowing precise details of his financial position or what was in the statement of affairs. Again, it is not clear on the evidence exactly how that is put other than that his family had believed it in their best interests for him to be made bankrupt at that point and had got together with others, as he alleges, to take advantage of him.
There are two questions to be considered when considering section 153B and whether an order for annulment should be made. The first question is: should the sequestration order have been made? The second is: should the court in its discretion annul the bankruptcy? In this case the two questions are really very much interwoven in the sense that the applicant asserts that the petition ought not to have been presented because he was not able to discern for himself the accuracy of the information in the statement of affairs due to his mental health at that time.
What he contends is that had he been in better mental health and had his family and the advisers not taken advantage of him, he would have been in a position to know and establish that his interests in the Kachrimanis Unit Trust were such that he was not insolvent and therefore he would not have presented the petition. On the same basis, it follows that his contention is that he was therefore not insolvent at the time that the petition was presented and that the court should in any event exercise its discretion in favour of an annulment. It is in the context of this argument that the applicant wishes to have an adjournment of the matter to a hearing date to enable him to call the seven or nine witnesses to which I have referred.
He has informed me this morning that there are three matters that he is pursuing at the moment. One matter is, as I understand it, in the Supreme Court where he has an action against Leo Dimos, who he says has wrongfully taken over assets which belonged to him. I should add that it is implicit in his argument that he does not accept that the unit trust was insolvent or, put another way, that his interest in the unit trust was not worth anything because of the debt position of the trust itself. He contends, again in an unspecified manner, that there were assets to which he was entitled which have in some way been removed from him.
He has, however, also informed me this morning that all of the family members, namely, his two brothers and his father, were made bankrupt themselves in 1992. That, on the one hand, suggests that there were no assets at that time but it is of course not necessarily the relevant time, which is when this petition was presented and accepted.
He has an action at present apparently in the Supreme Court against Leo Dimos in relation to assets of which he says he has been wrongfully deprived. He also has apparently some form of action or is about to commence some form of action in relation to being psychiatrically assessed or detained against his will, and I infer that in some way the taking over his affairs under order by the Guardianship Board is involved in this action as well. The third action, as he describes it, is his application to annul the bankruptcy.
It appears to me from what I have heard from the applicant that he feels and believes that he has been wrongfully deprived of assets by his family at or about the time of his bankruptcy, that in some way his mental state has been wrongly represented and that he has had orders in some manner wrongfully made against him relating to his medical position and the administration of his affairs and that this also has, in the manner described, resulted in a sequestration order being made that ought not to have been made.
He has told me this morning that he anticipates that he may be pursuing these matters through to the High Court. His complaints relating to these matters have, I am bound to say, all of the hallmarks of a crusade of sorts against the family members and other public officials, albeit that it is a pursuit and course which he sees as reasonable.
When I consider whether an adjournment should be granted, I am considering the evidence that is before me and considering the matters that I would have to find under section 153B. As to whether the petition ought not to have been presented, that is a matter which would depend upon the medical state of the applicant and upon whether or not he was solvent or insolvent, thus determining whether or not it was reasonable. The witnesses who he proposes to call, some of them being family members could give evidence about these matters. Others are simply persons who are acting on their behalf. The Australian Government Solicitors were simply doing their normal job in relation to the bankruptcy.
In one sense, without a hearing of all of these matters, it would not be possible to determine whether the petition ought to have been presented. But even if the applicant were successful in establishing that it ought not to have been presented for the reasons that he has given, there is still the second question to be considered; that is, should the court in its discretion annul the bankruptcy?
The only basis, it appears to me, that the applicant has for saying that the court should exercise its discretion is that he was solvent at the time of the presentation of the petition. That would be a relevant matter and, in my view, would be the most relevant matter in an application of this nature. The Full Court of the Federal Court in Stankiewicz v Plato (2000) FCA 1185 summarised the principles in relation to annulment as follows:
“(1) The court is entitled to consider not only the case as disclosed at the time the order was made but also as it would have disclosed had all the true facts been before the court on the making of the order; and (2) that if the court is satisfied the order ought not to have been made, it is not bound as a matter of course to annul the order. It must consider in light of all the circumstances of the case whether the order ought to be annulled.”
Having regard to the exercise of the discretion, I would take into account the time which has elapsed since the sequestration order was made and indeed since the applicant was discharged from bankruptcy in 1991. It is a fairly lengthy period. However, that alone is not a reason not to exercise the discretion in favour of the applicant.

In this case the evidence, and the most cogent evidence, is that of the Official Trustee in his report. There is no cogent evidence that the Kachrimanis Unit Trust – (and therefore the applicant) – had in fact a positive value rather than a negative one. What I do know is that subsequently the unit holders were themselves made bankrupt. The report of the trustee says that the properties which were apparently owned by the trust were sold by the various mortgagees with an overall shortfall resulting.
The provision of a balance sheet upon which comments or assertions are simply made as to values is not cogent evidence in my view and I am not satisfied that there is any cogent evidence presented, at this stage at least, to suggest that the applicant was therefore solvent at the time that the petition was accepted. That being the case, I would not exercise my discretion to annul the bankruptcy.
Turning back then to the application to adjourn the hearing so that further evidence could be called in support of the application, it is, in my view, relevant to look at the nature of the evidence to be called. The nature of that evidence is from witnesses about whom it is asserted they were involved in an orchestrated plan to deprive the applicant of his assets and to cheat him in some unspecified manner into filing a petition and becoming bankrupt in some way to promote their own interests. As I said earlier, this has the hallmarks of some form of crusade against these persons, and the other applications to courts and others which are on foot at the present time would suggest that this is indeed the case.
It appears that the real complaint is that other members of the family and their advisers and others have conspired to defraud the applicant of his entitlements. He is, it appears, pursing these individuals in other courts. I am dealing with an application for annulment of the bankruptcy and I do not see that there is any cogent evidence either before me now or which could usefully be derived from the persons who it is sought to subpoena to give evidence. Indeed, in my view, as a result of some of those persons who, as I have said, include Australian Government Solicitors, solicitors for other members of the family and for the applicant himself and persons involved with his medical treatment, it would, in my view, conceivably amount to an abuse of process if I were to allow them to be subpoenaed.
For those reasons, I do not believe it is appropriate for there to be a further adjournment of the matter. For the reasons that I have already articulated in coming to this conclusion, I am not satisfied the petition ought not to have been presented but even if I am wrong about that, I would not, in any event, be prepared to exercise my discretion to annul the bankruptcy because, in my view, there is cogent evidence that the applicant was insolvent at the time of the presentation of the petition. Accordingly, I propose to dismiss the application.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 6 June 2003