National Lending Pty Ltd v Smirneos
[2015] FCCA 503
•6 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NATIONAL LENDING PTY LTD v SMIRNEOS & ORS | [2015] FCCA 503 |
| Catchwords: BANKRUPTCY – Fund paid into Court – application in relation to balance of fund. |
| Pascoe v Smirneos & Ors [2010] FMCA 404 Pascoe v Smirneos& Ors[2014] FCCA 2764 Pascoe v Smirneos and Others (No.2) [2014] FCCA 2765 |
| Applicant: | NATIONAL LENDING PTY LTD (ACN 119 336 631) |
| First Respondent: | HELEN SMIRNEOS, A BANKRUPT |
| Second Respondent: | ANDREW SMIRNEOS |
| Third Respondent: | GEOFFREY REIDY IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF PETER SMIRNEOS, A BANKRUPT |
| Fourth Respondent: | WESTPAC BANKING CORPORATION (ABN 33 007 457 141) |
| Fifth Respondent: | SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF HELEN SMIRNEOS, A BANKRUPT |
| Sixth Respondent: | STEVE SMIRNEOS |
| Seventh Respondent: | PETER SMIRNEOS |
| Eighth Respondent: | BARBARA SMIRNEOS |
| File Number: | SYG 346 of 2010 |
| Judgment of: | Judge Barnes |
| Hearing date: | 6 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Tucker & Cowen Solicitors |
| Respondents: | No appearance |
ORDERS
In respect of the funds paid into Court on 22 November 2013 pursuant to paragraph 8(b) of the Orders made by Federal Magistrate Smith on 7 June 2010 (the Fund in Court), the balance of the Fund in Court be paid to Tucker & Cowen Solicitors, on behalf of National Lending Pty Ltd.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 346 of 2010
| NATIONAL LENDING PTY LTD (ACN 119 336 631) |
Applicant
And
| HELEN SMIRNEOS, A BANKRUPT |
First Respondent
| ANDREW SMIRNEOS |
Second Respondent
| GEOFFREY REIDY IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF PETER SMIRNEOS, A BANKRUPT |
Third Respondent
| WESTPAC BANKING CORPORATION (ABN 33 007 457 141) |
Fourth Respondent
| SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE OF THE PROPERTY OF HELEN SMIRNEOS, A BANKRUPT |
Fifth Respondent
| STEVE SMIRNEOS |
Sixth Respondent
| PETER SMIRNEOS |
Seventh Respondent
| BARBARA SMIRNEOS |
Eighth Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 16 December 2014 by National Lending Pty Ltd (National Lending) seeking that the balance of the fund paid into Court on 22 November 2013 pursuant to orders made by Smith FM on 7 June 2010 be paid to it.
National Lending relies on affidavits affirmed by Marcelle Lee Webster on 31 October 2014, 11 December 2014 and 5 February 2015, an affidavit of Tori Lee Russell affirmed on 22 December 2014 and an affidavit sworn by Scott Darren Pascoe on 7 October 2014 in connection with a similar application.
The circumstances in which the fund was paid into court and this order sought were discussed in more detail in relation to the application brought by Scott Darren Pascoe in his capacity as trustee of the property of Helen Smirneos (a bankrupt) in relation to the other part of the fund (see Pascoe v Smirneos & Ors [2014] FCCA 2764 and Pascoe v Smirneos and Others (No.2) [2014] FCCA 2765).
On 7 June 2010 on the application of Mr Pascoe, trustee of Mrs Smirneos’ bankrupt estate, Smith FM made orders, inter alia, for the appointment of trustees for the sale of a property at Gladesville that had been owned by Helen Smirneos and Andrew Smirneos and for the distribution of the proceeds of sale (Pascoe v Smirneos & Ors [2010] FMCA 404). His Honour ordered the trustees to hold the net proceeds of sale upon trust to be distributed as he ordered. Smith FM ordered that $82,520.02 be paid into Court in anticipation of possible claims. His Honour also ordered that one-half of the balance (after other specified payments) was to be held upon trust for Mr Pascoe as the trustee in bankruptcy for Mrs Smirneos and that the remaining half of the balance was to be held on trust for National Lending in relation to an amount that was owed to it by Andrew Smirneos under a judgment of the District Court entered on 6 February 2008.
Smith FM described the interest of National Lending in relation to the property rights of Mr and Mrs Smirneos (at [6] – [7]) and explained that the fund was paid into Court so that claimants might bring any claims in relation to the proceeds of the sale of property owned by Peter Smirneos (son of Mr and Mrs Smirneos) and his wife in circumstances where there was some suggestion that an amount had been applied for the benefit of Mr and Mrs Smirneos (see Pascoe v Smirneos [2010] at [8] – [11]).
The only claimant who emerged was Mr Reidy, in his capacity as trustee of the property of Peter Smirneos, who had become bankrupt. On the last occasion, on the application of Mr Pascoe, the sum of $15,000 was ordered to be paid out of the fund in Court to Mr Reidy. Consistent with the approach taken by Smith FM, half of the balance of the fund in Court was paid to Mr Pascoe as trustee of the property of Helen Smirneos. There was at that time no application filed by National Lending. Subsequently this application was filed and served on all relevant parties (see Pascoe v Smirneos & Ors [2014] at [4] and [7] – [12]).
I am satisfied on the basis of the evidence before me that all of the appropriate parties, including Andrew Smirneos and all of the other Respondents to the original proceedings, who may have an interest in the orders that are sought today have been served. There has been no appearance by any of those parties. I note that National Lending not only served the solicitor for Andrew Smirneos who remains on the record (despite having indicated that he did not act), but also served Andrew Smirneos by express post.
I am satisfied in these circumstances that all of the relevant parties have had the opportunity to raise any issues that they wished to raise in relation to the fund paid into Court. Mr Pascoe has indicated that he consents to the order being sought by National Lending. Westpac indicated in October 2014 that it consented to such an order being made. There has not been any indication to the contrary from any of the other parties who may have been interested.
I have had regard to the matters set out in the affidavit evidence of Ms Webster in relation to the existence of the debt owed by Andrew Smirneos to National Lending, in particular the fact that a judgment was obtained and that the amount received by National Lending fell short of the amount due to it. Even if the balance of the fund is paid to National Lending, this would still be less than the amount of over $198,000 that remains owing to it under the judgment of the District Court.
I am satisfied on all the material before me that it is in the interests of justice (see Pascoe v Smirneos (No.2) [2014] at [13]), consistent with the matters raised in the judgment of Smith FM and all the evidence before the Court that the order sought by National Lending be made.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 5 March 2015
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