Marchesi v Apostolou

[2009] FCA 259

FEDERAL COURT OF AUSTRALIA

Marchesi v Apostolou [2009] FCA 259

BRENDAN JOHN MARCHESI AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU, A BANKRUPT v VASILIKI APOSTOLOU AS TRUSTEE OF THE VASILIOU FAMILY TRUST and ANDREW VASILIOU, A BANKRUPT

VID 235 of 2005

TRACEY J
27 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 235 of 2005

BETWEEN:

BRENDAN JOHN MARCHESI AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU, A BANKRUPT
Applicant

AND:

VASILIKI APOSTOLOU AS TRUSTEE OF THE VASILIOU FAMILY TRUST
First Respondent

ANDREW VASILIOU, A BANKRUPT
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	27 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.Further to Order 2 of the orders made herein by Heerey J on 17 December 2008, Adam Moore, a Deputy Registrar of the Court, is hereby directed and appointed to execute for and on behalf of Optquest Pty Ltd and provide to the applicant a withdrawal of a caveat in registerable form in respect of registered caveat number AG228993G.

2.The second respondent pay the applicant’s costs of and incidental to today’s hearing, on an indemnity basis.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 235 of 2005

BETWEEN:

BRENDAN JOHN MARCHESI AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW VASILIOU, A BANKRUPT
Applicant

AND:

VASILIKI APOSTOLOU AS TRUSTEE OF THE VASILIOU FAMILY TRUST
First Respondent

ANDREW VASILIOU, A BANKRUPT
Second Respondent

JUDGE:	TRACEY J
DATE:	27 FEBRUARY 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. On 17 December 2008 Heerey J made orders which required the second respondent, Mr Andrew Vasiliou, within seven days to cause Optquest Pty Ltd to do all things that were necessary to effect the removal of a registered caveat which had been lodged over various properties which were identified in his Honour’s order. 

2. His Honour also provided that, in the event that Mr Vasiliou did not comply with his order, a Registrar of the Court be directed and appointed to execute and provide to the applicant a withdrawal of the caveat in registrable form.  He did not nominate a particular Registrar to perform these functions.

3. Mr Vasiliou did not comply with his Honour’s order and the applicant has applied to the Court for a Registrar to be appointed and directed to execute the withdrawal of the caveat. 

4. When the matter came on for hearing this morning Mr Vasiliou applied to me to disqualify myself from further hearing the matter.  He advanced certain limited arguments which came down to a suggestion that, because I had made adverse decisions in relation to matters in which he was earlier involved, I should not entertain the application that is presently made by Mr Marchesi.  The major decision to which he referred was a decision which I made, on 2 February 2009, refusing leave to appeal from Heerey Js order:  see Apostolou (as Trustee of the Vasiliou Family Trust) v Marchesi [2009] FCA 66.

5. The appropriate test for determining whether a judge should disqualify him or herself from the hearing of a matter is whether a reasonable observer seized of the circumstances of the particular proceeding would harbour a reasonable apprehension that the judge would not bring an impartial mind to the resolution of the particular issue.  Such a view could not arise merely because a particular judge has, on an earlier occasion, made a decision adverse to the interests of the person seeking disqualification.  There is no other basis advanced in the present application and I reject it.

6. There was a second application made by Mr Vasiliou that the hearing be adjourned because he had not, by reason of ill health, had the opportunity to respond to affidavit material filed by Mr Marchesi in support of the application, and because he proposes to make an application to the High Court for special leave to appeal from the decision which I made on 2 February 2009.  Mr Vasiliou has provided no evidence to support his claim to have been prevented by ill health from responding to the affidavit filed by Mr Lhuede in advance of this hearing.

7. [At this point I was interrupted when Mr Vasiliou left the bar table and approached the bench.  He came on to the bench and confronted me.  He was removed from the court.  I asked that he be advised that he could return provided he undertook to be of good behaviour.  He declined that offer and so the matter proceeded in his absence.] 

8. The application for an adjournment will be refused. 

9. The additional reasons are that the matter has a long history going back to orders made by Jessup J in 2007 and it was because of an attempt to circumvent those orders that the orders were sought and granted by Heerey J on 17 December 2008.  Mr Vasiliou had seven days within which to comply with those orders.  He did not do so and he has not done so and the matter should not further be delayed on the mere assertion that some form of appeal from a judgment, given over three weeks ago, may be made to the High Court on Monday. 

10. The application for an adjournment is refused. 

11. The orders sought by the applicant should be made.  They do no more than make more specific the order made by Heerey J on 17 December 2008 by nominating a particular Deputy District Registrar to execute a withdrawal of the caveat and to provide to the applicant a copy of that document in registrable form.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

Associate:

Dated:        26 March 2009

Counsel for the Applicant:	Mr M Lheude (Solicitor)
Solicitors for the Applicant:	Piper Alderman
The Second Respondent appeared in person
Date of Hearing:	27 February 2009
Date of Judgment:	27 February 2009