Price v Tsecouras
[2008] FMCA 596
•6 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRICE v TSECOURAS | [2008] FMCA 596 |
| BANKRUPTCY – Creditor’s petition – respondent debtor’s opposition to creditor’s petition – whether debtor’s further attempt to appeal the decision of the Supreme Court likely to succeed – application dismissed – sequestration order made – creditor’s petition granted. |
| Bankruptcy Act 1966 (Cth), s.52 |
| Tsecouras v Price [2008] FCA 106 |
| Applicant: | ANNE PRICE |
| Respondent: | PETER TSECOURAS |
| File number: | SYG 602 of 2008 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 6 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 6 May 2008 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Geikie of Hogan Geikie Poole Lawyers |
| Respondent: | The respondent appeared as a self-represented litigant with the assistance of a Greek interpreter |
ORDERS
I am satisfied that the debtor committed the act of bankruptcy alleged in the petition.
I am satisfied with the proof of the other matters required by s.52 of the Bankruptcy Act 1966 (Cth).
I make a sequestration order against the estate of Peter Tsecouras.
I order the applicant creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Court Rules (Cth)) and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
Under the Bankruptcy Regulations 1966 (Cth) a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.
The Court notes the date of act of bankruptcy is 3 October 2007.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 602 of 2008
| ANNE PRICE |
Applicant
And
| PETER TSECOURAS |
Respondent
REASONS FOR JUDGMENT
Introduction
By creditor’s petition, the creditor, Anne Price, seeks a sequestration order against the estate of the debtor, Peter Tsecouras. Mr Tsecouras, who appeared in person, opposes the making of a sequestration order on the basis that he was entitled to a share of the will of the late Diane Rosemary Keefe as they had been in a de facto relationship for over forty years. However, Mr Tsecouras was not named as a beneficiary in Ms Keefe’s will and Mr Tsecouras was contesting a will seeking recognition of his relationship with Ms Keefe. Mr Tsecouras had been unsuccessful in this contest before the Supreme Court of New South Wales, the Court of Appeal and a special leave application to the High Court. The executrix, Ms Price, initiated bankruptcy proceedings to recover costs awarded against Mr Tsecouras.
Litigation history
To assist in the understanding of the proceedings before this Court, it is necessary to understand the previous litigation history and I rely upon Tsecouras v Price [2008] FCA 106 per Cowdroy J which was an appeal of a decision of Raphael FM and an earlier challenge to the validity of the bankruptcy notice in this matter. I reproduce from that decision the following paragraphs which clearly state the background in this matter:
[5] In 2005 Mr Tsecouras instituted proceedings in the Supreme Court of New South Wales under the Family Provision Act 1982 against the estate of the late Diana Rosemary Keefe who died on 23 October 2003 aged 81 years (‘the deceased’). Ms Price is the executrix of the deceased’s estate and one of the eight beneficiaries of that estate. In his claim Mr Tsecouras alleged that a defacto relationship existed between the deceased and himself.
[6] On 6 July 2006 Associate Justice Macready delivered judgment in which his Honour found that no such relationship existed between Mr Tsecouras and the deceased. His Honour dismissed the proceedings and ordered Mr Tsecouras to pay costs.
[7] Ms Price duly obtained judgment against Mr Tsecouras in respect of the award of costs, and such judgment formed the debt upon which bankruptcy notice NN2367/07 was issued against Mr Tsecouras. The bankruptcy notice was served on 12 September 2007.
[8] Mr Tsecouras appealed to the New South Wales Court of Appeal (‘the Court of Appeal’) from the decision of Associate Justice Macready. Such appeal came before Handley JA in the Court of Appeal on 11 December 2006 in response to a motion filed on 1 December 2006 to strike out the appeal. Handley JA struck out the grounds of appeal but adjourned the notice of motion to 26 February 2007 to allow Mr Tsecouras an opportunity to reformulate his notice of appeal.
[9] On 26 February 2007 the notice of motion again came before Bryson JA in the Court of Appeal who considered an amended notice of appeal dated 31 January 2007. His Honour found that this document suffered from the same defects as those which were contained in the notice of appeal which had been considered by Handley JA. Bryson JA said:
The paragraphs under the heading ‘Grounds’ could not be treated as intelligible ground of appeal and the document should be struck out.
[10] Bryson JA so ordered and ordered Mr Tsecouras to pay Ms Price’s costs of the appeal and of the notice of motion dated 1 December 2006. On 19 March 2007 Mr Tsecouras filed an application for special leave to appeal to the High Court of Australia against the decision of Bryson JA delivered on 26 February 2007. It should be observed that the High Court of Australia dismissed Mr Tsecouras’ application for special leave to appeal to that court on 15 November 2007.
[11] On 19 September 2007 Mr Tsecouras made an application to set aside bankruptcy notice NN2367/07. The grounds for setting aside the notice are stated as follows:
I am still awaiting notificatin [sic] date for a Hearing in Case No S99 of 2007 filed March 19 2007 in the High Court of Australia, and the matter has not been settled.
See also letter sent to Supreme Court of Australia, re will and costs.
[12] The application to set aside the bankruptcy notice was heard in the Federal Magistrates Court of Australia by Raphael FM on 2 October 2007 and his Honour dismissed such application with costs. Mr Tsecouras appeals to this Court from that decision.
In dismissing the application, Cowdroy J made the following finding:
The prominent purpose of Mr Tsecouras’s appeal is improper as it has transparently been instigated to re-agitate the facts before another Court and to re-litigate its findings. As such this is Court is satisfied that the appeal constitutes an abuse of its process: see Worthley v England (1994) 52 FCR 69 at [89D].
I also note the following passages from His Honour’s judgment at [20]-[21]:
[20] No reasons have been advanced by Mr Tsecouras that demonstrate any error on the part of Raphael FM in the exercise of his discretion. Rather, his claim is that Associate Justice Macready made the costs order against him on the basis of false evidence. This Court cannot re-determine the merits of Associate Justice Macready’s decision which is Mr Tsecouras’ purpose in this appeal.
[21] At the hearing of the notice of motion Mr Tsecouras claimed that he wished to ask questions of the witnesses in respect of whom he had sought to issue subpoenas. Mr Tsecouras acknowledged that the only purpose in requiring the attendance of those persons was to ask them questions which would demonstrate that they had given false evidence before Associate Justice Macready. It was explained to Mr Tsecouras that this Court could not re-hear such evidence in his appeal against the decision of Raphael FM. It was further explained that the sole purpose of the hearing of the appeal was to determine whether there was any error of law in the decision of Raphael FM not to set aside the bankruptcy notice. Despite such explanations Mr Tsecouras persisted in his claim that he wished to interrogate the witnesses to demonstrate that they had given false evidence.
Mr Tsecouras pursued the same issue before this Court and did not refer to the creditor’s petition other than that he should be given more time to pursue the issue of false testimony which was raised in the earlier Supreme Court proceedings.
Notice stating grounds of opposition to application
On 14 April 2008, Mr Tsecouras filed a notice indicating that he intended to oppose the creditor’s petition on the following grounds:
1. I Peter Tsecouras claim that I am entitled to a share of the Will of the Late Diane Rosemary Keefe as we had a de facto relationship for over forty years.
2. The Will is currently being contested and the Respondent is seeking in the Supreme Court Matter No,2280 of 2005 for recognition of his relationship.
3. The beneficiaries named in the will are all friends and relatives and are in collusion against the Respondent.
4. The Respondent believes he is entitled to a share of the Will and Anna Price the Executrix has no right to instigate Bankruptcy proceedings.
In support of the notice, Mr Tsecouras also filed a brief affidavit which contains the following statement:
Figure 4 – I believe that I am entitled to a fair share of the will as stated in Form 5 and that bankruptcy proceedings against me should be put aside until the matter of the will is finalised.
Subpoena
On 29 April 2008, Mr Tsecouras filed a subpoena in the Court Registry for four witnesses to give evidence at the hearing scheduled for 6 May 2008. There was no response to the subpoena. There are a number of major anomalies to both the subpoena and the method of service adopted by Mr Tsecouras. The subpoena is addressed to Anne Price at her residential address and requires her to:
o Give evidence only [marked X] “See B”
o Give evidence and produce documents[marked X] “See C”
As far as I can ascertain, only one subpoena was completed as the four parties which Mr Tsecouras attempted to subpoena are listed as:
i)Anne Price
ii)Olive (aka Moore), John (aka Lawrence)
iii)Arthur Brown
iv)Dimitra Tsiamperlis
It appears that a copy of the subpoena was forwarded to Hogan Geikie Poole Lawyers, solicitors for the applicant, the day before the scheduled hearing date. Presumably the four parties that Mr Tsecouras was attempting to subpoena were not informed of the requirement to attend Court.
Application to set aside subpoenas
Mr Geikie, appearing for the applicant creditor, sought an order to set aside the subpoenas. When I invited Mr Tsecouras to address the Court in respect of the subpoena, he indicated that he wished to cross-examine these four witnesses to demonstrate to that they had given false evidence before in the Supreme Court proceedings.
I attempted to explain to Mr Tsecouras that the challenge to the contents of the will and the evidence given at that hearing are issues to be resolved by the Supreme Court and are not matters usually ventilated in this jurisdiction. I also indicated that he was faced with some difficulty because Macready AJ’s decision has been appealed to the Court of Appeal and a special leave application has been made to the High Court.
During this hearing Mr Tsecouras also attempted to submit a folder which he indicated formed the basis of his challenge to the evidence given by the four individuals named above. He seemed to be suggesting that I should receive this document and instruct the Supreme Court to undertake a further review. I informed Mr Tsecouras that he faced considerable difficulty as the Supreme Court proceedings had been finalised and exhausted its avenues of review. Despite my efforts to convey the issues to him, he did not appear to comprehend or accept this information despite the best efforts of the interpreter.
I indicated that the attempt to call the four nominated persons before this Court to further cross-examine them on the evidence given before Macready AJ was not available and I formally set aside the subpoenas.
Representation
The Court file contains a Notice of Appearance filed by Mr Tsecouras:
pensioner appears
Solicitor: Norman Hunt, address Hunt partners, Level 1, 99 Elizabeth St Sydney NSW 2000
ph: 02 9235 2966
email: [email protected]
The form is signed by Peter Tsecouras, respondent.
An affidavit of Peter Tsecouras sworn on 28 April 2008 includes the following statement:
3. The solicitors, Hunt Partners, have now informed me that they do not wish to represent me and attached is a copy of the letter dated 16 April 2008 and a letter to the Federal Court of Australia on the same date informing them of this position (see Annexure marked “A”). The contents of the letter indicate:
We refer to the notice of appearance that you filed in this matter on 14 April 2008. I note that you have made a mistake by including my name in the name of my firm Hunt Partners on the notice of appearance. As previously advised, I am not representing you at the hearing which understands as being held on 21 April 2008.
As I understand it, you propose to represent yourself and should advise the Court accordingly.
I will notify the Court as a matter of courtesy but I’m not appearing for you in this matter.
Sequestration
Mr Tsecouras applied for this matter to be adjourned for at least three months to enable him to challenge the will of the late Diane Rosemary Keefe in the Supreme Court. From the information available to this Court, the Supreme Court proceedings have finalised and all avenues of appeal have been exhausted. There is no evidence that fresh proceedings have been filed in that jurisdiction. In the circumstances, there is no ground for a further adjournment of these proceedings and the sequestration should proceed. I make the orders accordingly.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 9 May 2008
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