Pekar v Juratowitch - [2022] VSC 556

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

Proposed proceeding

FIMA PEKAR	Proposed Plaintiff
v
DANIEL P JURATOWITCH as trustee of the bankrupt estate of IDA PEKAR	Proposed Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 September 2022
CASE MAY BE CITED AS:	Pekar v Juratowitch
MEDIUM NEUTRAL CITATION:	[2022] VSC 556

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PRACTICE AND PROCEDURE – Prothonotary refused to seal originating process under r 27.06(1) – Proposed plaintiff sought direction under r 27.06(3) that Prothonotary seal originating process – Proposed proceeding relates to administration of wife’s bankrupt estate pursuant to sequestration order of Federal Circuit and Family Court (Division 2) – Proposed proceeding should properly be made in court that made sequestration order – Proposed plaintiff a vexatious litigant in Federal Court and Federal Circuit and Family Court (Division 2) – Proposed proceeding would be an abuse of process of the Supreme Court – Application refused – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 27.06.

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HER HONOUR:

On 28 October 2021, the Federal Circuit and Family Court of Australia (Division 2) made a sequestration order against the estate of Ida Pekar, under the Bankruptcy Act 1966 (Cth). Daniel Juratowitch was appointed trustee of her bankrupt estate.

On 29 June 2022, Fima Pekar, the husband of Ida Pekar, attempted to file a writ and statement of claim in the Supreme Court of Victoria. Mr Pekar sought to initiate a proceeding against Mr Juratowitch, in his capacity as the trustee of the bankrupt estate of Mrs Pekar.

The statement of claim set out various allegations including:

(a) the trustee had frozen a bank account held jointly by Mr and Mrs Pekar;

(b) the trustee had frozen a credit card issued in the name of Mr Pekar; and

(c) the trustee was acting unconscionably.

Mr Pekar sought a number of remedies including:

(a) a declaration that the trustee’s conduct constitutes unconscionable conduct;

(b) a declaration that the trustee is not fit and proper to act as a trustee;

(c) an order requiring the trustee to remove the freeze on the joint bank account;

(d) aggravated compensation;

(e) penalty interest on the amount frozen by the trustee; and

(f) a pecuniary penalty order arising from the unconscionable conduct of the trustee.

The Prothonotary refused to seal the writ and statement of claim pursuant to r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which provides:

The Prothonotary may refuse to seal an originating process without the direction of the Court where the Prothonotary considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court.

On 4 August 2022, the Prothonotary wrote a letter to Mr Pekar explaining the refusal to seal his originating process. The letter explained that the decision was made pursuant to r 27.06(1) of the…

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 Pekar v Juratowitch

Details

AGLC: Pekar v Juratowitch [2022] VSC 556
Case: [2022] VSC 556
Decision Date: 16 September 2022

CaseChat Overview and Summary

The case of Pekar v Juratowitch involved a proposed plaintiff, who sought to have an originating process sealed by the Prothonotary under rule 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The plaintiff's intention was to initiate proceedings against the defendant regarding the administration of the bankrupt estate of his late wife. The Federal Circuit and Family Court (Division 2) had previously issued a sequestration order concerning this estate.

The central legal issues in this case were whether the Prothonotary should seal the originating process and whether the Supreme Court was the appropriate forum for the proposed proceeding. The plaintiff argued that the Supreme Court had jurisdiction to hear the matter, while the defendant contended that the proceeding should be filed in the Federal Circuit and Family Court (Division 2), which had issued the sequestration order. Additionally, the defendant argued that the plaintiff was a vexatious litigant in both the Federal Court and the Federal Circuit and Family Court (Division 2), and that allowing the proceeding in the Supreme Court would be an abuse of process.

The court determined that the proposed proceeding should be made in the Federal Circuit and Family Court (Division 2), as it was the court that had issued the sequestration order and thus had jurisdiction over the administration of the estate. The court further found that the plaintiff was a vexatious litigant in the Federal Court and the Federal Circuit and Family Court (Division 2). As a result, the court concluded that allowing the proceeding in the Supreme Court would constitute an abuse of process. Consequently, the application for the Prothonotary to seal the originating process was refused.

The court's decision was based on the principle that the appropriate court to hear the matter concerning the administration of the estate was the one that had issued the sequestration order. Additionally, the court considered the plaintiff's status as a vexatious litigant and determined that allowing the proceeding in the Supreme Court would be an abuse of process. Therefore, the Prothonotary was directed not to seal the originating process.

Orders