Pekar v Jess (Trustee)

[2021] FCA 1519

FEDERAL COURT OF AUSTRALIA

Pekar v Jess (Trustee) [2021] FCA 1519

File number(s):

VID 81 of 2017

Judgment of:

MORTIMER J

Date of judgment:

1 December 2021

Date of publication:

2 December 2021

Catchwords:

PRACTICE AND PROCEDURE – application for stay of proceedings – application dismissed

Legislation:

Bankruptcy Act 1966 (Cth), s 104

Federal Court of Australia Act 1976 (Cth), s 37AO(2)(b)

Cases cited:

Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22

Pekar v Holden (Trustee) [2017] FCA 596

Pekar v Jess (Trustee) [2020] FCA 1250

Pekar v Jess (Trustee) [2021] FCA 1325

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

20

Date of hearing:

1 December 2021

Solicitor for the Appellant

Hopkins Lawyers

Counsel for the Respondent:

Mr E Moon

Solicitor for the Respondent:

Rothwell Lawyers

ORDERS

VID 81 of 2017

BETWEEN:

IDA PEKAR

Appellant

AND:

MATTHEW JAMES JESS AND MATTHEW KUCIANSKI AS JOINT TRUSTEES OF THE BANKRUPT ESTATE OF FIMA PEKAR

Respondent

ORDER MADE BY:	MORTIMER J
DATE OF ORDER:	1 DECEMBER 2021

THE COURT ORDERS THAT:

1.The interlocutory application filed on 1 December 2021 on behalf of Ida Pekar be dismissed.

2.There be no order as to the costs of the application.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Delivered ex tempore and revised)

MORTIMER J:

1. An urgent interlocutory application was filed today in proceeding VID 81 of 2017 on behalf of Ida Pekar.  Mrs Pekar is the wife of Fima Pekar.  Fima Pekar has been contesting various proceedings about his bankruptcy for a considerable period of time.  The interlocutory application seeks:

   There be a stay of these proceedings (including any warrant issued) pending the appointment of a suitable litigation guardian for Ida Pekar and Fima Pekar.

2. The warrant of possession in favour of Mr Pekar’s trustee in bankruptcy was issued in 2021, consequent upon orders made by Tracey J in this Court in 2017.  Those orders followed an appeal from the Federal Circuit Court made earlier that year, in which Mr Pekar appealed from orders of the Federal Circuit Court, which declared a transfer of property from Mr Pekar to Mrs Pekar to be void against Mr Pekar’s trustee in bankruptcy (see Holden in His Capacity as Trustee of the Bankrupt Estate of Pekar v Pekar [2017] FCCA 22). Tracey J dismissed that appeal, but did vary the Federal Circuit Court orders to recognise Mrs Pekar’s pre-existing half-interest in the couple’s home in East St Kilda (see Pekar v Holden (Trustee) [2017] FCA 596). As the trustee has pointed out in some correspondence exhibited to affidavits filed in support of the interlocutory application, those were final orders made by Tracey J, and there was no appeal from those orders.

3. I should mention here that the interlocutory application today was supported by two affidavits, one by Christine Hopkins, dated 29 November 2021,…