Papoutsakis v Dunn - [2024] NSWCA 246

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Papoutsakis v Dunn [2024] NSWCA 246
Hearing dates: 14 October 2024
Date of orders: 14 October 2024
Decision date: 14 October 2024
Before: Gleeson JA
Decision:
2024/218114 (Appeal proceedings)
(1)   Notice of appeal filed 7 June 2024 is dismissed as incompetent.
(2)   Appellant to pay the respondents’ costs in this Court on and from 23 September 2024.
2024/297356 (Leave proceedings)
(1)   Dismiss the summons seeking leave to appeal.
(2)   Make no order as to costs of the summons, to the intent that each party pay their own costs of the summons.

Catchwords:
CIVIL PROCEDURE — Court of Appeal — Application to dismiss appeal as incompetent — Where plaintiff undischarged bankrupt — Where statement of claim dismissed on ground of lack of standing to sue — Bankruptcy Act 1966 (Cth) s 58 — Whether proceedings fall within exception in s 116(2)(g) — Whether matter for determination on appeal is a matter arising under an Act in the Schedule referred to in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 7(4) — Whether Court of Appeal has jurisdiction to hear appeal

Legislation Cited:
Bankruptcy Act 1966 (Cth), ss 58, 116
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 7
Supreme Court Act 1970 (NSW), s 101(2)(l)
Uniform Civil Procedure Rules 2005 (NSW), r 51.41

Cases Cited:
Eberstaller v Poulos (2014) NSWLR 395; [2014] NSWCA 211
HSBY Pty Ltd v Lewis [2024] HCA 35
Papoutsakis v Scanlon [2024] NSWSC 562

Category: Principal judgment
Parties: Antonios Papoutsakis (Appellant)
Patrick Joseph Dunn (First respondent)
Justin Gibb Bates (Second respondent)
Representation:
Counsel:
N Oreb (Respondents)
Solicitors:
Antonios Papoutsakis (Appellant – self-represented)
Sparke Helmore Lawyers (Respondents)

File Number(s): 2024/297356 (Leave); 2024/218114 (Appeal)
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2024] NSWSC 562

Date of Decision:

14 May 2024

Before:

Elkaim AJ

File Number(s):

2023/3611139

JUDGMENT

GLEESON JA: Application is made by Patrick Dunn and Justin Bates (the respondents) to dismiss an appeal as incompetent on the ground that this Court does not have jurisdiction to entertain the appeal by Mr Antonios Papoutsakis from a judgment of Elkaim AJ delivered on 14 May 2023: Papoutsakis v Scanlon [2024] NSWSC 562. The respondents also seek an order dismissing the summons seeking leave to appeal from the same judgment.
The basis of the application is that the appeal is “a matter arising under” the Bankruptcy Act 1966 (Cth), being one of the Acts to which s 7(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (the NSW Cross-vesting Act) applies, and as a result, s 7(4)(a) of the NSW Cross-vesting Act requires that any such appeal from a single judge of the Supreme Court be heard by the Full Court of the Federal Court. Reference was made to the recent decision of the High Court delivered on 9 October 2024 in HSBY Pty Ltd v Lewis

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 Papoutsakis v Dunn

Details

AGLC: Papoutsakis v Dunn [2024] NSWCA 246
Case: [2024] NSWCA 246
Decision Date: 14 October 2024

CaseChat Overview and Summary

In *Papoutsakis v Dunn*, the Court of Appeal of the Supreme Court of New South Wales considered an application to dismiss an appeal as incompetent. The plaintiff, an undischarged bankrupt, had their statement of claim dismissed by the primary judge on the grounds that they lacked the standing to sue, pursuant to section 58 of the *Bankruptcy Act 1966* (Cth). The plaintiff sought to appeal this decision.

The central legal issues before the Court of Appeal were whether the proceedings fell within an exception to the general rule of bankruptcy affecting standing, specifically under section 116(2)(g) of the *Bankruptcy Act 1966* (Cth), and whether the matter for determination on appeal constituted a matter arising under an Act referred to in Schedule 1 of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (NSW), thereby conferring jurisdiction on the Court of Appeal.

Gleeson JA reasoned that the primary judge's decision concerned the plaintiff's standing to sue, which was a question of general law and not a matter arising under a specific federal Act listed in the Schedule to the *Jurisdiction of Courts (Cross-vesting) Act 1987* (NSW). Consequently, the Court of Appeal lacked the necessary jurisdiction to entertain the appeal. The Court also considered the application for leave to appeal.

The Court of Appeal ordered that the notice of appeal be dismissed as incompetent and that the appellant pay the respondents’ costs in the Court of Appeal on and from 23 September 2024. The summons seeking leave to appeal was also dismissed, with each party to bear their own costs of that summons.

Orders

Orders of the court

2024/218114 (Appeal proceedings)

(1) Notice of appeal filed 7 June 2024 is dismissed as incompetent.

(2) Appellant to pay the respondents’ costs in this Court on and from 23 September 2024.

2024/297356 (Leave proceedings)

(1) Dismiss the summons seeking leave to appeal.

(2) Make no order as to costs of the summons, to the intent that each party pay their own costs of the summons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Papoutsakis v Dunn [2024] NSWCA 246
Hearing dates:	14 October 2024
Date of orders:	14 October 2024
Decision date:	14 October 2024
Before:	Gleeson JA
Decision:	2024/218114 (Appeal proceedings) (1) Notice of appeal filed 7 June 2024 is dismissed as incompetent. (2) Appellant to pay the respondents’ costs in this Court on and from 23 September 2024. 2024/297356 (Leave proceedings) (1) Dismiss the summons seeking leave to appeal. (2) Make no order as to costs of the summons, to the intent that each party pay their own costs of the summons.
Catchwords:	CIVIL PROCEDURE — Court of Appeal — Application to dismiss appeal as incompetent — Where plaintiff undischarged bankrupt — Where statement of claim dismissed on ground of lack of standing to sue — Bankruptcy Act 1966 (Cth) s 58 — Whether proceedings fall within exception in s 116(2)(g) — Whether matter for determination on appeal is a matter arising under an Act in the Schedule referred to in the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 7(4) — Whether Court of Appeal has jurisdiction to hear appeal
Legislation Cited:	Bankruptcy Act 1966 (Cth), ss 58, 116 Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7 Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 7 Supreme Court Act 1970 (NSW), s 101(2)(l) Uniform Civil Procedure Rules 2005 (NSW), r 51.41
Cases Cited:	Eberstaller v Poulos (2014) NSWLR 395; [2014] NSWCA 211 HSBY Pty Ltd v Lewis [2024] HCA 35 Papoutsakis v Scanlon [2024] NSWSC 562
Category:	Principal judgment
Parties:	Antonios Papoutsakis (Appellant) Patrick Joseph Dunn (First respondent) Justin Gibb Bates (Second respondent)
Representation:	Counsel: N Oreb (Respondents) Solicitors: Antonios Papoutsakis (Appellant – self-represented) Sparke Helmore Lawyers (Respondents)
File Number(s):	2024/297356 (Leave); 2024/218114 (Appeal)
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2024] NSWSC 562 Date of Decision: 14 May 2024 Before: Elkaim AJ File Number(s): 2023/3611139