Pekar v Jess (Trustee)

[2021] FCA 1325

FEDERAL COURT OF AUSTRALIA

Pekar v Jess (Trustee) [2021] FCA 1325

Appeal from:

Pekar v Holden (Trustee) [2017] FCA 596

File number(s):

VID 81 of 2017

Judgment of:

O'CALLAGHAN J

Date of judgment:

27 October 2021

Catchwords:

BANKRUPTCY – application to set aside orders for possession of the home of the appellant and her husband (a former bankrupt) – application dismissed

PRACTICE AND PROCEDURE – application for leave to institute proceedings – where applicant previously declared vexatious and prohibited from instituting proceedings under s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) – application dismissed

Legislation:

Bankruptcy Act 1966 (Cth) s 58(2)

Transfer of Land Act 1958 (Vic) s 51(2)

Cases cited:

Pekar v Jess (Trustee) [2020] FCA 1250

Division:

General Division

Registry:

Victoria

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Number of paragraphs:

15

Date of hearing:

27 October 2021

Counsel for the Appellant:

The appellant appeared in person, with the assistance of her husband, Mr Fima Pekar

Solicitor for the Respondent:

Mr J Blaskovic of Rothwell Lawyers Pty Ltd

ORDERS

VID 81 of 2017

BETWEEN:

IDA PEKAR

Appellant

AND:

MATTHEW JAMES JESS AND MATTHEW KUCIANSKI AS JOINT TRUSTEES IN BANKRUPTCY FOR THE ESTATE OF FIMA PEKAR

Respondent

ORDER MADE BY:	O'CALLAGHAN J
DATE OF ORDER:	27 OCTOBER 2021

THE COURT ORDERS THAT:

1.The appellant’s interlocutory application dated 5 July 2021 be dismissed.

2.Mr Fima Pekar’s application for leave to institute a proceeding dated 18 May 2021 be dismissed.

3.The respondents’ costs of the applications be taxed and paid out of Mr Fima Pekar’s bankrupt estate in accordance with s 109(1)(a) of the Bankruptcy Act 1966 (Cth).

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

REASONS FOR JUDGMENT
Revised from transcript

O’CALLAGHAN J:

1. I have before me two applications.  The first is brought by Mrs Ida Pekar against the respondent trustees of the bankrupt estate of Mr Fima Pekar, seeking the setting aside of orders made by Tracey J on 30 May 2017.  The second application is brought by Mr Pekar, seeking leave to institute a proceeding under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) and the Federal Court of Australia Act 1976 (Cth) for annulment of his bankruptcy. He needs such leave because on 26 February 2021 Snaden J made an order that, pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth), Mr Pekar be prohibited from instituting in any registry of the Federal Court of Australia any proceedings other than proceedings instituted pursuant to s 104 of the Bankruptcy Act.

2. The relevant history is set out in the judgment of Moshinsky J in Pekar v Jess (Trustee) [2020] FCA 1250 from [11]–[51]. No purpose is served in repeating what his Honour said.

3. At the hearing this morning, Mr Pekar appeared self‑represented.  I also granted him leave to make submissions on behalf of Mrs Pekar.

4. The submissions in support of both applications were similar.  I should also…