FEDERAL COURT OF AUSTRALIA
Papoutsakis v Prime Capital Securities Pty Ltd [2023] FCA 205
File number(s): NSD 456 of 2022 Judgment of: HALLEY J Date of judgment: 14 March 2023 Catchwords: BANKRUPTCY – application for extension of time to file a notice of appeal – where no adequate explanation for delay – where unsecured creditors likely to be prejudiced – where proposed appeal has no merit and no reasonable prospects of success – application dismissed Legislation: Bankruptcy Act 1996 (Cth) ss 58, 153B, 154
Evidence Act 1995 (Cth) s 140
Federal Court Rules 2011 (Cth) rr 36.03, 36.05
Federal Circuit Court (Bankruptcy) Rules 2016 (Cth) r 7.06
Limitation Act 1974 (Tas) s 4
Cases cited: BQQ15 v Minister for Home Affairs [2019] FCAFC 218
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
House v The King (1936) 55 CLR 499; [1936] HCA 40
Prime Capital Securities Pty Ltd v Papoutsakis [2021] FCCA 1594
Robson v Body Corporate for Sanderling at Kings Beach CTS 2942 (2021) 286 FCR 494; [2021] FCAFC 143
Tuakeu v Minister for Immigration and Border Protection [2016] FCA 362
Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 69 Date of hearing: 8 December 2022 Counsel for the Applicant: The Applicant appeared in person Solicitor for the Interested Person: Mr C Groves of Dobson Mitchell Allport ORDERS
NSD 456 of 2022 BETWEEN: ANTONIOS PAPOUTSAKIS
Applicant
AND: PRIME CAPITAL SECURITIES PTY LTD
Respondent
MR ROBERT TENBENSEL IN HIS CAPACITY OF THE BANKRUPT ESTATE OF ANTONIOS PAPOUTSAKIS
Interested Person
ORDER MADE BY:
HALLEY J
DATE OF ORDER:
14 MARCH 2023
THE COURT ORDERS THAT:
1.The application for an extension of time, filed on 17 June 2022, to file a notice of appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
HALLEY J:
This is an application under r 36.05 of the Federal Court Rules 2011 (Cth) (Rules) for an extension of time (Application) in which to appeal from orders dismissing an application made by the applicant, Mr Antonios Papoutsakis, to annul his bankruptcy: see Prime Capital Securities Pty Ltd v Papoutsakis [2021] FCCA 1594 (J).
The respondent, Prime Capital Securities Pty Ltd (PCS), is deregistered and has not participated in these proceedings. The trustee of Mr Papoutsakis’ estate, Mr Robert Tenbensel (Trustee), has participated in these proceedings as an interested person.
On 14 July 2021, the primary judge delivered written reasons and made an order that Mr Papoutsakis’ application for annulment of his bankruptcy be dismissed. Mr Papoutsakis was required to file any notice of appeal within 28 days after the date of the decision of the primary judge was delivered: r 36.03(a) of the Rules. Mr Papoutsakis did not file a complying notice…
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- Case
- [2023] FCA 205
- Decision Date
CaseChat Overview and Summary
The court considered the reasons for the delay in filing the notice of appeal, noting that Mr Papoutsakis did not provide an adequate explanation for the delay. The court also evaluated the proposed grounds of appeal, which were either not cogent or assumed incorrect legal propositions. The court found that even if there had been an adequate explanation for the delay, the proposed appeal grounds did not have reasonable prospects of success. Moreover, the unsecured creditors were likely to be prejudiced by the granting of an extension of time.
Consequently, the court dismissed the application for an extension of time to file a notice of appeal. The proposed appeal had no merit and no reasonable prospects of success, and it was not in the interests of justice to grant the extension of time. The court concluded that the application should be dismissed.
The court's final order was that the application for an extension of time, filed on 17 June 2022, to file a notice of appeal was dismissed. This order was in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application for an extension of time, filed on 17 June 2022, to file a notice of appeal is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 21 May 2018, a sequestration order was made against Mr Papoutsakis’ estate (Sequestration Order). Mr Papoutsakis is also a party to proceedings HBC 133 of 2018 which were commenced by Ms Papoutsakis in the Family Court of Australia (Family Court proceedings). In October 2022, Justice McClelland reserved judgment in the matter. THE PRIMARY JUDGE’S REASONSFactual findings Mr Papoutsakis commenced proceedings SYG 534 of 2018 in the Federal Circuit Court of Australia (FCCA proceedings), as it then was, as a late application to review the Sequestration Order. PCS did not participate in the FCCA proceedings. The Trustee participated as an interested person and provided a report pursuant to r 7.06 of the Federal Circuit Court (Bankruptcy) Rules 2016 (Cth): at J [2]. The hearing occurred on 16 to 17 June 2021. At the hearing, Mr Papoutsakis “changed tack” and sought an annulment of his bankruptcy pursuant to s 153B(1) of the Bankruptcy Act 1996 (Cth) (Bankruptcy Act): at J [1]. The primary judge made the following observations and findings that provide important context to the circumstances surrounding the bankruptcy of Mr Papoutsakis and the exercise of any discretion to now annul his bankruptcy:9Mr Papoutsakis deposed that following the sequestration order his then-solicitors acted negligently and not in accordance with his instructions by responding to the Bankruptcy Notice outside the required time period. In his affidavit sworn 6 May 2021 Mr Papoutsakis deposed that the sequestration order dated 21 May 2018 was made in his absence and was made because his solicitor failed to attend court. However, in cross examination Mr Papoutsakis’s evidence was to the effect that he had only instructed his solicitors to assist him to obtain an adjournment of the creditor’s petition at its first return date and that he had been successful in obtaining that adjournment to 21 May 2018 with a related order that he file and serve any notice of ground of opposition and affidavit in support by 16 May 2018. His oral evidence was to the effect that once he had obtained the adjournment, he left the issue in the hands of the finance broker who had negotiated the PCS loan but that that person let him down. He agreed that he had been aware of the terms of the Court’s orders made at the first return date, that documents of the sort referred to in those orders were not filed and that he did not appear and was not represented on 21 May 2018, when the sequestration order was made.10Mr Papoutsakis said that in the first week of June 2018, with his solicitor, he met the Trustee and told him that he intended to have the bankruptcy annulled. On 23 October 2018 he incorrectly told the Trustee that an application to annul the bankruptcy had been filed. On 28 July 2020 he wrote to the Trustee saying that he intended to apply for an annulment.11 In his affidavit of 6 May 2021, Mr Papoutsakis deposed that he met with his barrister on 10 October 2018 to sign a bankruptcy annulment application to be submitted to the Court. Two weeks later, the Trustee telephoned Mr Papoutsakis’s counsel, in his presence, to confirm that the application had been submitted but refused to provide Mr Papoutsakis with the details of their discussion. On about 10 January 2019 Mr Papoutsakis telephoned the Court and was informed that the application had not been received. Mr Papoutsakis deposed that he telephoned his counsel who said that he had forwarded the application to the Court for review prior to filing.12In his affidavit sworn 5 November 2020, Mr Papoutsakis deposed that he filed in the Local Court an application [to set aside the default judgment], but was advised by that court that the motion could not proceed because Capital Securities XVI Pty Ltd [sic] was in liquidation. In his oral evidence, Mr Papoutsakis identified his Local Court notice of motion to set aside the default judgment which bore a court stamp of 8 May 2019. In his affidavit sworn 5 November 2020, Mr Papoutsakis deposed that 30 days after having advised him that [the creditor plaintiff] was in liquidation, the Local Court notified him that it would not consider the matter without the Trustee’s consent. He also said that for a period a firm of solicitors in Sydney had acted for him in relation to that stage of the Local Court proceedings. Exhibit T14 is a copy of those solicitors’ tax invoice which recorded that they attended the motion’s return date on 30 May 2019 and a further hearing listing on 27 June 2019 but ceased to act in July 2019.