Papatriantafillou v Kekeff - [2011] FCA 778

FEDERAL COURT OF AUSTRALIA
Papatriantafillou v Kekeff [2011] FCA 778

Citation: Papatriantafillou v Kekeff [2011] FCA 778

Parties: CHRISTOS PAPATRIANTAFILLOU v ZORA KEKEFF

File number(s): NSD 1045 of 2011

Judge: YATES J

Date of judgment: 11 July 2011

Catchwords: PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time

Legislation: Bankruptcy Act 1966 (Cth) ss 52(2)(a), 52(3), 153A, 153B
Federal Court Rules O 52 r 15

Cases cited: Jess v Scott (1986) 12 FCR 187
Kekeff v Papatriantafillou [2011] FMCA 114
Perpetual Trustee Company Ltd v Smith (2010) 186 FCR 566
Rangott v Marshall (2004) 139 FCR 14
Simon v Vincent J O’Gorman Pty Ltd (1979) 41 FLR 95
Zocchi v The Queen [2000] FCA 1163

Date of hearing: 11 July 2011

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 19

Counsel for the Applicant: The applicant appeared in person

Solicitor for the Respondent: Mark Warton

Solicitor for the Supporting Creditor: Ms Gunther of Attwaters

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1045 of 2011

BETWEEN:
CHRISTOS PAPATRIANTAFILLOU
Applicant

AND:
ZORA KEKEFF
Respondent

JUDGE:

YATES J

DATE OF ORDER:

11 JULY 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of and incidental to the hearing of the application.
3.The applicant pay the supporting creditor’s costs of and incidental to the hearing of the application.

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1045 of 2011

BETWEEN:
CHRISTOS PAPATRIANTAFILLOU
Applicant

AND:
ZORA KEKEFF
Respondent

JUDGE:

YATES J

DATE:

11 JULY 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

The applicant applies for an extension of time within which to file and serve a notice of appeal from a judgment given by the Federal Magistrates Court of Australia on 1 April 2011, by which a sequestration order was made against the applicant’s estate. The presiding Federal Magistrate also made an order for the taxation and payment of the petitioning creditor’s costs and ordered, pursuant to s 52(3) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act), that all proceedings under the sequestration order be stayed for a period of 21 days.
Under O 52 r 15(1) of the Federal Court Rules, any notice of appeal should have been filed and served within 21 days after judgment was given. The applicant did not take that step. He now seeks the favourable exercise of the power in O 52 r 15(2), which provides that the Court or a Judge “for special reasons” may at any time give leave to file and serve a notice of appeal.
In his reasons for judgment published on 1 April 2011, the presiding Federal Magistrate identified the principal issue arising on the hearing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Papatriantafillou v Kekeff

Details

AGLC: Papatriantafillou v Kekeff [2011] FCA 778
Case: [2011] FCA 778
Decision Date: 11 July 2011

CaseChat Overview and Summary

The matter before the court involved an application by the appellant, Papatriantafillou, for leave to file and serve a notice of appeal beyond the statutory time limit. The appeal pertained to a decision made by the Primary Judge, which had found that the appellant's mortgage over certain property was invalid. The respondent, Kekeff, opposed the application on the grounds that it was not made within the requisite time and that the appellant had not demonstrated any special circumstances that would justify an extension of time. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the appellant had any grounds to be granted leave to file and serve a notice of appeal beyond the prescribed time limit. The appellant argued that the delay in filing the notice of appeal was due to the respondent's failure to provide the appellant with a copy of the judgment. The appellant claimed that this omission was a significant factor that contributed to the delay and warranted an extension of time. The respondent, on the other hand, argued that the appellant had failed to demonstrate any special circumstances that would justify an extension of time and that the delay was solely due to the appellant's negligence.

In dismissing the application, the court held that the appellant had not demonstrated any special circumstances that would warrant an extension of time. The court noted that the appellant had been aware of the decision of the Primary Judge since it was handed down, and that the appellant had taken no steps to obtain a copy of the judgment or to file a notice of appeal within the requisite time. The court further held that the appellant's claim that the respondent's failure to provide a copy of the judgment was a significant factor contributing to the delay was without merit, as the appellant had failed to demonstrate how this failure had prevented the appellant from filing a notice of appeal within the requisite time. The court also noted that the appellant had failed to demonstrate any prejudice that would result from the delay in filing the notice of appeal.

The court's final orders were that the application be dismissed, that the appellant pay the respondent's costs of and incidental to the hearing of the application, and that the appellant pay the supporting creditor's costs of and incidental to the hearing of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs of and incidental to the hearing of the application.

3. The applicant pay the supporting creditor’s costs of and incidental to the hearing of the application.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Papatriantafillou v Kekeff [2011] FCA 778
Parties:		CHRISTOS PAPATRIANTAFILLOU v ZORA KEKEFF
File number(s):		NSD 1045 of 2011
Judge:		YATES J
Date of judgment:		11 July 2011
Catchwords:		PRACTICE AND PROCEDURE – leave to file and serve a notice of appeal out of time
Legislation:		Bankruptcy Act 1966 (Cth) ss 52(2)(a), 52(3), 153A, 153B Federal Court Rules O 52 r 15
Cases cited:		Jess v Scott (1986) 12 FCR 187 Kekeff v Papatriantafillou [2011] FMCA 114 Perpetual Trustee Company Ltd v Smith (2010) 186 FCR 566 Rangott v Marshall (2004) 139 FCR 14 Simon v Vincent J O’Gorman Pty Ltd (1979) 41 FLR 95 Zocchi v The Queen [2000] FCA 1163
Date of hearing:	11 July 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	19
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Mark Warton
Solicitor for the Supporting Creditor:	Ms Gunther of Attwaters

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1045 of 2011

BETWEEN:	CHRISTOS PAPATRIANTAFILLOU Applicant
AND:	ZORA KEKEFF Respondent

JUDGE:	YATES J
DATE OF ORDER:	11 JULY 2011
WHERE MADE:	SYDNEY

JUDGE:	YATES J
DATE:	11 JULY 2011
PLACE:	SYDNEY