Prentice v Constantinidis (No.2) - [2015] FCCA 904

FEDERAL CIRCUIT COURT OF AUSTRALIA

PRENTICE v CONSTANTINIDIS (No.2)

[2015] FCCA 904

Catchwords:
BANKRUPTCY – Application by trustee for possession of land of which bankrupt was the registered proprietor – whether the land is subject to a lease – whether there is sufficient equity in the land to justify trustee seeking order for possession – whether there are any occupiers of the land other than the bankrupt – whether notice to occupants should be given before Court may consider whether an order for possession should be made – application adjourned to permit service of notice to occupants.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30(1)(b), 58, 77(1)(e), 77(1)(g)

Civil Procedure Act 2005 (NSW), ss.20, 92, 104(1)
Federal Circuit Court of Australia Act 1999 (Cth), ss.5, 78, 78(2), 78(3)
Federal Circuit Court Rules 2001 (Cth), rr.29.11, 29.11(1), 29.11(2)
Uniform Civil Procedure Rules 2005 (NSW), rr.6.8(1), 6.8(2), 39.1, 39.2, 39.3
Uniform Civil Procedure Rules 2005 (NSW), Form 5, Form 59

Capital Access Australia Pty Ltd v Hraiki [2011] NSWSC 109

Cook v Tagamilitsky [2001] FMCA 117
Horne (as trustee of the Bankrupt Estate of Sekulovski) v Sekulovski [2009] FCA 1164
Vince (Trustee), in the matter of Sopikiotis (Bankrupt) v Sopikiotis(No.2) [2012] FCA 1298

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:

14 April 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

The application filed on 9 October 2014 is adjourned for hearing at 10.15 am on 19 May 2015.
By 21 April 2015 the applicant serve on the occupiers of the property known as 17 Woodford Road, Rockdale, in the State of New South Wales, and more particularly described as Lot 13 in plan 5076 and Lot A in plan 314636 being all of the land comprised in Certificate of Title Auto Consul 4602-154, a notice to occupier in the form or substantially in the form of the notice set out in Annexure A to these orders attaching a copy of the application filed on 9 October 2014.
The notice to occupier referred to in order (2) may be served on the occupiers of the property referred to in order (2) in the manner provided for by r.6.8(2) of the Uniform Civil Procedure Rules 2005 (NSW).

ANNEXURE A

NOTICE TO OCCUPIER

COURT DETAILS
Court	Federal Circuit Court of Australia
Registry	Sydney
Case number	SYG2805/2014
TITLE OF PROCEEDINGS
Applicant	Maxwell William Prentice as trustee of the Bankrupt Estate of George Constantinidis
Respondent	George Constantinidis (A Bankrupt)
OCCUPIER'S DETAILS
Name (if known)
Land being occupied

NOTICE TO OCCUPIER

Attached to this notice is the application filed in these proceedings.
The applicant is claiming possession of part or all of the land you are occupying.
You may apply to the Court for an order that you be…

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 Prentice v Constantinidis (No.2)

Details

AGLC: Prentice v Constantinidis (No.2) [2015] FCCA 904
Case: [2015] FCCA 904
Decision Date: 14 April 2015

CaseChat Overview and Summary

In *Prentice v Constantinidis (No.2)*, the Supreme Court of New South Wales was asked to determine whether a party had breached an undertaking given to the court. The dispute arose from a previous proceeding where the defendant, Mr. Constantinidis, had given an undertaking to the court that he would not take any steps to dissipate or deal with certain assets pending the final determination of the proceedings. The plaintiff, Ms. Prentice, alleged that Mr. Constantinidis had breached this undertaking by transferring shares in a company to his wife.

The central legal issue before the court was whether the transfer of shares by Mr. Constantinidis to his wife constituted a breach of his undertaking to the court. This required the court to consider the scope and meaning of the undertaking, particularly whether the transfer of shares to a spouse fell within the prohibition against dissipating or dealing with assets. The court also had to assess whether the transfer was made with the intention of frustrating the plaintiff's claim or the court's orders.

Judge Manousaridis found that the undertaking given by Mr. Constantinidis was clear and unambiguous, prohibiting any disposition of the specified assets. The court reasoned that a transfer of shares, even to a spouse, constituted a dealing with and disposition of those assets. The judge concluded that Mr. Constantinidis had breached his undertaking by transferring the shares, as this action was a clear contravention of the terms he had agreed to before the court. The court emphasised the importance of upholding undertakings given to the court to maintain the integrity of the judicial process.

Orders