Prentice v Constantinidis (No.3)
[2015] FCCA 1438
•19 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRENTICE v CONSTANTINIDIS (No.3) | [2015] FCCA 1438 |
| Catchwords: PRACTICE AND PROCEDURE – Whether trustee complied with previous orders concerning service of notice to occupiers – orders complied with – orders for possession made. |
| Legislation: Uniform Civil Procedure Rules2005 (NSW), r.6.8(2) |
| 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: | 19 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.L. Cook |
| Solicitors for the Applicant: | Polczynski Lawyers |
| Respondent in person assisted by Ms G. L. Patania. |
ORDERS
The application in a case filed on 28 April 2015 by Mr Constantinidis is dismissed.
By 2 June 2015 George Constantinidis deliver up vacant possession 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 (Rockdale Property) to the Applicant.
By 2 June 2015 George Constantinidis deliver up all keys for all building and improvements on the Rockdale Property to the Applicant.
In the event George Constantinidis fails to deliver up vacant possession of the Rockdale Property in accordance with orders 2 and 3 above, a writ of possession shall forthwith issue in favour of the Applicant.
By 2 June 2015 George Constantinidis must remove from the Rockdale Property all vehicles, rubbish and chattels which have not vested in the Applicant (Personal Property).
In the event George Constantinidis fails to comply with order 5 above, the Applicant is empowered to remove and dispose of the Personal Property on the Rockdale Property as he sees fit after 2 June 2015.
The applicant’s costs of these proceedings be paid out of the bankrupt estate of Mr Constantinidis.
The parties have liberty to apply on such notice as the circumstances warrant generally and in relation to any issue which may arise out of the execution of these orders.
| 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
(revised from transcript)
On 14 April 2015 I published reasons for judgment on an application made by the trustee of the estate of Mr George Constantinidis for orders designed to give the trustee possession of a property described as Lot 13 in plan 5076 and Lot A in plan 314636 (Rockdale Property). In those reasons I dealt with a defence to the trustee’s application raised by Mr Constantinidis.
That defence was that the Rockdale Property was subject to a lease Mr Constantinidis granted to an entity that is known as Australian South Pacific Educational and Commercial Training Incorporated Inc (Aspect). I concluded in those reasons that I was not satisfied that Mr Constantinidis did grant any such lease to Aspect. I did, however, conclude there was evidence that persons did occupy the Rockdale Property and that I should make none of the orders that the trustee sought without first directing that a notice to occupiers be served on the Rockdale Property.
Consequently, on 14 April 2015 I ordered that by 21 April 2015 the trustee serve on the occupiers of the Rockdale Property a notice to occupiers in the form or substantially in the form of the notice which I set out in those orders, together with a copy of the application which was filed by the trustee in these proceedings. I also ordered that the notice may be served in the manner provided for by r.6.8(2) of the Uniform Civil Procedure Rules2005 (NSW).
On 28 April 2015, Mr Constantinidis filed an application in a case in which he sought a number of orders, which can be broken down into three classes. The first class – which in fact comprises only one order – was an application for an order that Aspect be joined as a party to these proceedings. The second class of orders was that possession not be granted to the trustee on the grounds that leases have existed since 2002 and a current lease signed in 2013 exists between Mr Constantinidis and Aspect. And the third class of orders were that possession not be given to the trustee because valid subleases exist between Aspect and various tenants occupying various portions of the Rockdale Property, such portions being identified either by reference to a room or by reference to a unit.
The trustee applied for an order that I dismiss the application in a case filed by Mr Constantinidis on three grounds. The first is that the application could only have been brought with the leave of the trustee and could not have been brought by Mr Constantinidis. The second ground is that the application by Aspect should not be entertained because Aspect was not represented by a lawyer. The third ground is that the application constituted an abuse of process because it sought to relitigate a finding of fact that I made in my reasons for judgment which I delivered on 14 April 2015.
The relevant finding of fact which the trustee claims the application in a case seeks to relitigate is my not being satisfied that there was any lease between Mr Constantinidis and Aspect. What the trustee submitted in that regard is not entirely accurate because the application in a case seeks relief on the basis that there are subleases between Aspect and subtenants, although it may necessarily follow from my finding that there is no lease between Mr Constantinidis and Aspect that there therefore is no sublease between Aspect and the subtenants. Nevertheless, I made no express finding to that effect.
In any event, that part of the application in a case cannot be entertained by me because none of the tenants have themselves applied to this Court. An application purports to have been made on their behalf by Mr Constantinidis, and there is no basis on which Mr Constantinidis could have or can represent those tenants. I might add, though, that during the course of the hearing Ms Patania indicated that, in fact, she, or by implication Mr Constantinidis, did not purport to represent the subtenants.
In response to the trustee’s application that the application in a case be dismissed as an abuse of process, Mr Constantinidis said that there was proof of a lease between him and Aspect. In that regard, I assume the evidence that Mr Constantinidis was referring to are the two affidavits which were filed together with the application in a case. Those affidavits were not read, given the nature of the application the trustee made.
In my opinion, that there may now be proof of a lease is no answer to the trustee’s submission that I have made a finding. Even if it were an answer, a brief perusal of the affidavits could not have satisfied me of the existence of any bona fide lease. And although I have not looked at this question with any close scrutiny, a brief perusal of the affidavit showed at least one oddity which I raised with Mr Constantinidis, and that is that the lease that has been annexed to the affidavits seems to have been signed by a Mr Hakos who is described as a public officer.
Mr Constantinidis, from the bar table, said that in fact Mr Hakos was a committee member not a public officer, although he also said he was also a public officer at some stage. I make no finding about that. I only refer to the affidavits to indicate that if it were relevant that there was proof of a lease, there would be serious doubts as to whether that evidence would be sufficient.
There are also other apparent problems which one picks up very easily. The purported lease that is annexed is one that was entered into, apparently, on June 2013. It has been alleged that there has been a lease in place ever since 2001, but no leases for the period before 2013 have been put into evidence. Also of some significance is that there is no attempt in the affidavits on which Mr Constantinidis intended to rely to deal with the matters which I discussed in a little detail in my reasons for judgment relating to Aspect. In paragraph 11 of my reasons for decision, after having noted a few matters relating to Aspect, I noted that those matters gave rise to a doubt about whether Aspect is a bona fide association, that is, an association which, in fact, undertakes or intends to undertake the purposes for which it has been formed. I also said that unless such doubt is removed I could not be satisfied that any lease Aspect may have entered into with Mr Constantinidis is not a sham.
So even if I had accepted Mr Constantinidis’ submission that there was now evidence before the Court of a lease, and even if I read all the affidavit material, I would still not be satisfied there was a bona fide lease. In my opinion, therefore, the application in a case should be dismissed as an abuse of process because it does seek to relitigate an issue that has been determined against Mr Constantinidis and, in any event, is based on material which could not possibly prove what it seeks to prove.
There is one matter I should note and that deals with the application for the joinder of Aspect. The finding I made in relation to the nonexistence of such lease is something that affects Aspect. Aspect was not formally joined as a party when the matter was heard before me last. However, Aspect was represented at that hearing by Ms Patania, who described herself as a public officer, and submissions were made on behalf of Aspect so that, even though no formal order was made to join Aspect, in substance, the determination I made in my reasons for judgment on 14 April 2015 was a determination of an issue which was litigated between the trustee and Aspect.
Given that I have decided that the application in the case should be dismissed, I next turn to whether I should make the orders which the trustee seeks in the application he filed on 9 October 2014. That requires me to determine whether the orders I made on 14 April 2015 in relation to the service of the notice to occupier has been complied with.
The trustee has adduced an affidavit of Kristina Cook which I have read, which deposes as follows:
On Wednesday 15 April 2015 at 6.40 pm, I served The Occupiers of [the Rockdale Property] with the following documents:
Notice to Occupier, a true copy of which is annexed hereto and marked with the letter “A”; and
Application - General Federal Law filed 9 October 2014.
I served the documents by delivering them to [the Rockdale Property] and placing a copy of the said documents in each of the four letterboxes at the address, by affixing a copy of the said documents to the side door of the premises and affixing a copy of the said documents to the side access gate of the premises.
I am satisfied that the notice to occupier and the application was served in the manner that I require it to be served by the orders I made on 14 April 2015.
It was submitted that further time should be given to the tenants to apply to the Court in relation to the interests they hold in relation to the Rockdale Property. Various reasons were given for those, two of which I understood. One was a claim made by Ms Patania that she was informed by the registry that the application in a case was to be dealt with before the trustee’s application.
Whether or not that be true, and I do not accept that that is what was said to Ms Patania, the critical document was the notice to occupiers, which, as I have found, was served on the premises. The notice to occupiers made it very clear that the trustee was applying for possession of the Rockdale Property, and that if the occupier was not already a respondent to the proceedings and did not apply to the Court within 10 days after service of the notice, the Court may enter judgment in the absence of the tenant, and the tenant may be evicted from the land.
The second reason why, as I understood it, it was submitted that I should delay making any order was that given by Mr Constantinidis. His submission, as I understand it, was that he understood that it would only be after I made some finding dealing with Aspect’s lease that the tenants would then be invited to make some submissions. Again, if that is the submission I reject it. As I had already said, the governing document is the notice to occupier. That set out what an occupier was required to do if the occupier wished to assert an interest in the Rockdale Property and to oppose the making of an order for possession.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 28 May 2015
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