Prentice v Constantinidis

[2015] FCCA 895

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRENTICE v CONSTANTINIDIS [2015] FCCA 895

Catchwords:
PRACTICE AND PROCEDURE – Application for adjournment of hearing – whether hearing should be adjourned because respondent is not in a position to defend the matter and understood the matter to be listed for directions – application for adjournment refused.

Applicant: MAXWELL WILLIAM PRENTICE AS TRUSTEE OF THE BANKRUPT ESTATE OF GEORGE CONSTANTINIDIS

Respondent: GEORGE CONSTANTINIDIS (A BANKRUPT)

File Number: SYG 2805 of 2014

Judgment of: Judge Manousaridis

Hearing date: 31 March 2015

Delivered at: Sydney

Delivered on: 31 March 2015

REPRESENTATION

Counsel for the Applicant: Mr D L Cook

Solicitors for the Applicant: Polczynski Lawyers

Respondent in person assisted by Ms G Patania

ORDERS

1. The application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2805 of 2014

MAXWELL WILLIAM PRENTICE AS TRUSTEE OF THE BANKRUPT ESTATE OF GEORGE CONSTANTINIDIS

Applicant

And

GEORGE CONSTANTINIDIS (A BANKRUPT)

Respondent

REASONS FOR JUDGMENT

1. On 9 October 2014 the applicant, who is the trustee in bankruptcy of the estate of George Constantinidis, applied for orders that he deliver possession of a property (Rockdale property) of which Mr Constantinidis was the sole registered proprietor. That property is comprised in indicative title Auto Consol 4602-154.  I say that Mr Constantinidis was the sole registered proprietor of the Rockdale property because, on or about 21 May 2014, the trustee was registered as the proprietor of the Rockdale property.  The trustee was entitled to be registered as proprietor of the interest Mr Constantinidis held in the Rockdale property because of the sequestration order that was made by this Court on 4 March 2014 against the estate of Mr Constantinidis.  That order vested in the trustee the interest Mr Constantinidis had in the Rockdale property. 

2. On 11 March 2015 the matter came before me for directions.  Mr Constantinidis appeared for himself.  On my recollection, Mr Constantinidis asked that the application be set down for hearing some six weeks after 11 March 2015.  He said he needed that time to have an opportunity to obtain finance to repay his creditors.  After hearing submissions from counsel for the trustee, who submitted the delay was causing prejudice to the creditors, I listed the matter for hearing at 2.15 pm on 31 March 2015.  The order I made was that:

   The application filed on 9 October 2014 is set down for hearing at 2.15 pm on Tuesday, 31 March 2015. 

3. At the hearing of the matter today Mr Constantinidis appeared through Mrs Gemma Constantinidis (who is also known as Ms Gemma Patania).  She applied for an adjournment on behalf of Mr Constantinidis.  Mrs Constantinidis applied on a number of grounds.  The first was that Mr Constantinidis understood that the matter was listed today only for the purpose of a hearing date of the application being listed.  He said he did not receive any letter from the Court to say the matter had been set down for hearing. 

4. Whether or not Mr Constantinidis understood the matter had been set down before the Court at 2.15 pm on 31 March 2015 for the purpose of a hearing date being allocated after 31 March 2015, the effect of the order I made is unambiguous.  The application was set down for hearing. In any event, even if Mr Constantinidis was to have stated on oath that he understood that the matter had been set down today for the reasons he says it was set down, I would not have accepted that reflected his actual understanding.  Although I do not have the transcript of what occurred before me on 11 March 2015, my recollection is that I made it very clear that the matter would proceed to a hearing today if Mr Constantinidis did not have evidence which showed he had good prospects of obtaining the finance he said he expected to obtain to repay his creditors. 

5. The second ground on which Mr Constantinidis applies for an adjournment is that he says he is not in a position to defend the matter today.  I asked what the defence was.  Two were raised.  One is that the Rockdale property is subject to a lease to an incorporated association known as ASPECT (Australasian South Pacific Educational and Commercial Training).  That assertion is supported by an affidavit that was filed in Court, sworn by Mrs Constantinidis, although in the name of Gemma Patania.  The second ground is that Mr Constantinidis has a claim for damages against the trustee.  The second asserted defence is no defence to the orders that are being sought by the trustee in this application.  I, therefore, pay no regard to it as a ground that is relevant to the application for an adjournment that has been made.

6. As to the first ground, Mr Constantinidis has had sufficient time to prepare a defence based on the asserted existence of the lease to ASPECT.  Mrs Constantinidis asserted the existence of such a lease in a letter to the trustee dated 10 July 2014.  That letter is at page 126 of the annexures to the affidavit of Maxwell William Prentice, sworn 2 October 2014, which was read for the purposes of the application for an adjournment.  The trustee disputed the asserted lease in a letter dated 17 July 2014.  A copy of that letter is similarly included in an annexure to the affidavit of the trustee.  In that letter the trustee stated:

   There is no record of the purported lease between George Constantinidis and A.S.P.E.C.T INC recorded on the title of the property in the records of the Land Titles Office.  Furthermore, my inquiries with the relevant authorities failed to find any reference to A.S.P.E.C.T INC being a registered organisation, charitable or otherwise.  Accordingly, I do not accept that any such lease exists.

7. Further, I do not accept that Mr Constantinidis is not prepared to run that defence before me today.  As I have noted above, Mrs Constantinidis has filed in Court an affidavit which asserts the existence of the lease and subleases from ASPECT.  There is not attached to that affidavit any copy of the evidence of the lease itself.  Mrs Constantinidis gave an explanation from the bar table why that was so.  Whether that explanation is one that I should accept can be determined, if Mr Constantinidis wishes to rely on that affidavit, on the application of the trustee for the orders which he seeks today.

8. For those reasons, I reject the application for an adjournment. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  14 April 2015