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
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:
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.
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.
I should mention here that the interlocutory application today was supported by two affidavits, one by Christine Hopkins, dated 29 November 2021,…
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CaseChat Overview and Summary
The central legal issue before the court was whether the application for a stay of proceedings should be granted. The court needed to consider whether the proceedings against Pekar were oppressive, vexatious, or an abuse of the court process. This required an assessment of the conduct of the parties involved and the nature of the legal actions being pursued. The court also had to determine whether a stay would be in the interests of justice, balancing the rights and interests of both parties.
In dismissing the application for a stay, the court found that the proceedings against Pekar were not oppressive or vexatious. The evidence presented did not support a conclusion that the legal actions were an abuse of the court process. The court held that the actions were necessary to resolve disputes concerning the family trust and the property transaction. Furthermore, the court determined that a stay would not be in the interests of justice, as it would prevent the proper administration of justice and the resolution of the disputes. Consequently, the application was dismissed, and no order was made regarding the costs of the application.
The court's final orders were that the interlocutory application filed on behalf of Pekar be dismissed and that there be no order as to the costs of the application. These orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
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.
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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