Re Vasiliou

[2009] VSC 286

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No. 7736 of 2009

IN THE MATTER of Section 129(3) of the Supreme Court Act 1986

IN THE MATTER of an application by Andrew VASILIOU to obtain a fee waiver

ANDREW VASILIOU Applicant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2009
DATE OF JUDGMENT:	8 July 2009
CASE MAY BE CITED AS:	Re: Vasiliou
MEDIUM NEUTRAL CITATION:	[2009] VSC 286

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PRACTICE AND PROCEDURE – Fee waiver – Whether a company eligible for waiver

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APPEARANCES:	Counsel	Solicitors
For the Applicant	The Applicant appeared in person

HIS HONOUR:

1. Before me in the Practice Court is Andrew Vasiliou.  As best as I can divine his concern it is that the Deputy Prothonotary has refused to waive the fee payable upon the filing of a Notice of Appeal in the Court of Appeal.  He produced an unfiled Notice of Motion dated 26 June 2009 and an affidavit sworn by him on the same day.  These documents, he said, were not accepted for filing by the Prothonotary, presumable pursuant to r 27.06.

1. Mr Vasiliou was made bankrupt on 14 September 2004 and he was discharged from bankruptcy on 15 October 2007 pursuant to s 149 of the Bankruptcy Act 1966.  His trustee was and is Brendan John Marchesi. 

1. Mr Marchesi has had an ongoing dispute with Mr Vasiliou regarding three pieces of real estate which were registered in Mr Vasiliou’s name.  Mr Vasiliou has for some years resisted the efforts of Mr Marchesi to obtain and realise these properties, contending that he held them on trust for the Vasiliou Family Trust.  At some stage it was suggested that the trustee of the Vasiliou Family Trust was Mr Vasiliou’s wife, Vasiliki Apostolou.  At another stage it may be that the trustee of the Trust was Optquest Pty Ltd, a company of which Mr Vasiliou is the sole director.

1. By proceeding No 5856 of 2009 Mr Marchesi sought the removal of a caveat lodged on the titles to the three properties and orders restraining Mr Vasiliou, Ms Apostolou and Optquest from lodging further caveats.  The caveat the subject of the principal relief was lodged on behalf of Optquest.

1. Following trial Hansen J on 5 June 2009 ordered the removal of the caveat and enjoined the three defendants from lodging a further caveat, subject to certain terms which are not here relevant. 

1. On 22 June 2009 Mr Vasiliou sought to file a notice of appeal and also sought a waiver of the fee of $2,922.60 payable upon the filing of the notice.  The Deputy Prothonotary on 22 June refused the waiver application in these terms:

The said application to waive the payment of the fee of $2922.60 is refused on the basis that a company is a named appellant on the proposed Notice of Appeal.

1. The power to waive fees is given by s 129(3):

The prothonotary, or a deputy prothonotary, at or for the place where a proceeding is to be heard may, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay a fee prescribed under sub-section 1(a), waive payment of that fee if, in his or her opinion, the payment of that fee by that person would cause him or her financial hardship and in that case the prescribed fee is not payable.

1. Mr Vasiliou contends that, in his reasons, the Deputy Prothonotary misconstrued the statutory provisions.  A company, he said is a ‘person’ and that, accordingly, the Deputy Prothonotary ought to have exercised his discretion upon a proper basis, namely, the financial hardship to the proposed appellants, including Optquest.

1. The terms of s 129(3) including the reference to living expenses and the expression ‘cause him or her financial hardship’ provide a strong indication that a company is not intended to be the beneficiary of a fee waiver. I hesitate, to reach a finally concluded view on this matter as I have not had the benefit of full, or indeed any, arguments. Mr Vasiliou, who presented his case with characteristic energy, merely said that the New South Wales Court will waive fees payable by a corporate litigant. This may or may not be the case. The fact remains that s 129(3) is in terms which differ from the New South Wales Civil Procedure Regulation 2005 to which I assume Mr Vasiliou referred.

1. It is not at all clear to me what power I have to review or remit this decision of the Deputy Prothonotary.  Needless to say, Mr Vasiliou did not dwell on this matter.  He produced an unfiled Originating Motion and affidavit dated 26 June 2009.  I doubt very much whether there is an appeal from a waiver decision of a Deputy Prothonotary to a judge of the Court.  It may be that there is relief available under O 56, but, in such a case, the relief is discretionary.  I am not persuaded that this relief should be granted.

1. The application is dismissed.

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