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Papoutsakis v Tsiakis

Papoutsakis v Tsiakis

Case [2025] NSWSC 35 11 February 2025

Standing

Abuse of Process

Summary Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Papoutsakis v Tsiakis [2025] NSWSC 35
Hearing dates: 7 February 2025
Date of orders: 11 February 2025
Decision date: 11 February 2025
Jurisdiction: Common Law
Before: Weinstein J
Decision:
(1) The proceedings are summarily dismissed against the third defendant.
(2) The plaintiff is to pay the third defendant’s costs of the proceedings and of the notice of motion.

Catchwords:
CIVIL PROCEDURE – application for summary dismissal – where plaintiff is undischarged bankrupt – whether proceedings come within exception in s 116(2)(g) of Bankruptcy Act – no question of principle – where alleged injuries said to be caused by bankruptcy – not a category of exception – no standing – proceedings untenable – abuse of process – application granted for summary dismissal as against third defendant

Legislation Cited:
Bankruptcy Act 1966 (Cth) ss 60, 116, 265
Uniform Civil Procedure Rules 2005 (NSW) r 13.4

Cases Cited:
Agar v Hyde (2000) 201 CLR 552
Cappello v Homebuilding Pty Ltd [2024] NSWCA 88
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Kovarfi v BMT & Associates Pty Ltd (No 2) [2014] NSWSC 100
Papoutsakis v Dunn [2024] NSWCA 246
Papoutsakis v Scanlon [2024] NSWSC 562
Papoutsakis v Tenbensel [2024] TASSC 13
Samootin v Shea [2010] NSWCA 371
Singh v Harrowell & Ors [2023] NSWSC 420

Category: Procedural rulings
Parties: Antonios Papoutsakis (Plaintiff)
Paul Scanlon (First Defendant)
Prime Capital Securities Pty Ltd (Second Defendant)
Steven Tsiakis (Third Defendant)
Representation: A Papoutsakis (Plaintiff) (Self-represented)
S Tsiakis (Third Defendant) (Self-represented)

File Number(s): 2023/361139
Publication restriction: Nil

JUDGMENT

This is a notice of motion brought by the third defendant in proceedings commenced by the plaintiff on 9 November 2023. The third defendant seeks the following relief:-

An order that the proceedings be summarily dismissed as against the third defendant.

In the alternative, an order that the whole of the Statement of Claim filed on 9 November 2023 be struck out insofar as it is brought against the third defendant.

An order that the plaintiff pay the third defendant’s costs of the proceedings to date, including the costs of and incidental to the motion.

In the alternative to order 3, costs of the motion.

Such further or other order as the court thinks fit.

Both the plaintiff and the third defendant are unrepresented. The third defendant confirmed that he was seeking to have the claim dismissed on the basis that the plaintiff’s claim cannot be maintained because he is an undischarged bankrupt and has no standing to bring the causes of action he alleges. He asserts that the causes of action are vested in the trustee of the plaintiff’s bankrupt estate and thus the instant proceedings have no prospects of success and are an abuse of the process of this court.
On 14 May 2024, Elkaim AJ delivered a judgment summarily dismissing the proceedings against the fourth and fifth defendants: Papoutsakis v Scanlon [2024] NSWSC 562 (“Scanlon”). An appeal was dismissed as incompetent by…

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 Tsiakis

Details

AGLC: Papoutsakis v Tsiakis [2025] NSWSC 35
Case: [2025] NSWSC 35
Decision Date: 11 February 2025

CaseChat Overview and Summary

Papoutsakis v Tsiakis involved a dispute between the plaintiff, Papoutsakis, and the defendants, Tsiakis and two other parties. The plaintiff sought to bring an action for damages for personal injuries allegedly caused by the defendants. However, the plaintiff was an undischarged bankrupt, which raised issues concerning the validity of the proceedings under the Bankruptcy Act. The case was heard in the Supreme Court of Queensland, where the defendants applied for summary dismissal of the plaintiff’s claim.

The central legal issue was whether the plaintiff's proceedings against the third defendant could proceed, given the plaintiff's status as an undischarged bankrupt. Specifically, the court had to determine whether the plaintiff's claim fell within the exceptions outlined in section 116(2)(g) of the Bankruptcy Act, which provides exceptions to the general prohibition on undischarged bankrupts instituting or prosecuting proceedings without leave of the Court. The plaintiff argued that their claim was an exception because it was related to the bankruptcy, namely that the injuries were allegedly caused by actions connected to the bankruptcy. The court needed to decide whether this was an acceptable exception under the statute.

The court found that the plaintiff's claim did not fall within the exception provided by section 116(2)(g) of the Bankruptcy Act. The court held that claims arising from injuries allegedly caused by actions connected to the bankruptcy were not a category of exception and therefore the plaintiff did not have standing to bring the proceedings. The court further found that the proceedings were untenable and constituted an abuse of process. Consequently, the application for summary dismissal was granted in relation to the third defendant, as the plaintiff's claim was deemed invalid under the circumstances.

Orders