Marchesi v Apostolou

[2007] FCA 254

FEDERAL COURT OF AUSTRALIA

Marchesi v Apostolou [2007] FCA 254

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
VID235 OF 2005

JESSUP J
2 MARCH 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID235 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:	JESSUP J
DATE OF ORDER:	2 MARCH 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant have leave to amend the Application in the terms proposed in the draft filed on 8 February 2007.

2.The Application as so amended be filed and served at or before 4.00pm on 5 March 2007.

3.Costs be reserved. 

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	VID235 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:	JESSUP J
DATE:	2 MARCH 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant is the trustee of the bankrupt estate of the second respondent, Andrew Vasiliou.  The proceeding concerns the nature of Mr Vasiliou’s interest in three real properties in suburban Melbourne.  Mr Vasiliou is the registered proprietor in each case, but he claims that the beneficial interest is owned by the Vasiliou Family Trust, of which his wife, Vasiliki Apostolou, the first respondent, is trustee.  Mr Vasiliou claims that he made a gift of the properties to his family trust in 1987 and that, although the transfer was not registered, the gift was complete in equity, and that the trust has thereafter been the beneficial owner of the properties.

2. When this proceeding was commenced in March 2005, the applicant claimed that the beneficial title to each of the properties vested in him pursuant to s 58 of the Bankruptcy Act 1966 (Cth) (‘the Act’). It was in response to that claim that Mr Vasiliou asserted that he had made an equitable gift of the properties in 1987. Alternatively, the applicant claims that, if Mr Vasiliou held the bare legal interest, he (Vasiliou) was entitled to an indemnity out of the trust property for certain debts which he had incurred in relation to the subject properties, that his right to indemnity vested in the applicant pursuant to s 58 of the Act and that the properties were charged in favour of the applicant with payment of certain remuneration, liabilities, expenses etc. By an Amended Application for which Weinberg J gave leave on 18 April 2006, the applicant specified 13 separate liabilities of the Vasiliou Family Trust, said to arise in connection with the subject properties, for…