Ribbera v Giasoumi

[2017] FCA 354

FEDERAL COURT OF AUSTRALIA

Ribbera v Giasoumi [2017] FCA 354

File number:

VID 1234 of 2016

Judge:

MURPHY J

Date of judgment:

5 April 2017

Catchwords:

PRACTICE AND PROCEDURE – Application for dismissal under r 30.21 of the Federal Court Rules 2011 (Cth) – failure to appear at hearing and failure to comply with orders – application granted

Legislation:

Sistrom v Urh (1992) 40 FCR 550

Cases cited:

Bankruptcy Act 1966 (Cth)

Transfer of Land Act 1958 (Vic)

Date of hearing:

30 March 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

29

Counsel for the Applicant:

The Applicant did not appear

Counsel for the Respondent:

Mr J Kohn

Solicitor for the Respondent:

Dimos Lawyers

ORDERS

VID 1234 of 2016

BETWEEN:

CATHY RIBBERA

Applicant

AND:

NICHOLAS GIASOUMI (IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF PAUL RIBBERA)

Respondent

JUDGE:	MURPHY J
DATE OF ORDER:	30 MARCH 2017

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The Applicant pay the Respondent’s costs on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY J:

1. In this proceeding the applicant, Cathy Ribbera, seeks a declaration that she is entitled to a greater than half share in the proceeds of the sale of a property located at 174A Gooch Street, Thornbury, Victoria of which she and her now bankrupt husband, Paul Ribbera, were the joint registered proprietors.  The application is opposed by the respondent, Nicholas Giasoumi, in his capacity as trustee of the bankrupt estate of Mr Ribbera (the Trustee).

2. The proceeding was listed for hearing on 30 March 2017 and Mrs Ribbera did not appear. There is no question that she was aware of the hearing date. For the reasons I explain, it is appropriate to exercise my discretion to dismiss the application pursuant to r 30.21 of the Federal Court Rules 2011 (Cth) (the Rules.)

3. Mrs Ribbera represented herself in the proceeding, and it is appropriate to set out the relevant considerations in more detail than would otherwise be the case.

   THE FACTS

4. I draw the following account of the facts from the Trustee’s affidavit sworn 14 December 2016 and the documents annexed thereto.

5. On 23 January 1984, Mrs Ribbera’s parents, Jim and Sofia Kerasovitis, became the registered proprietors of a property described as Lot 2 on Title Plan 83088F located in Gooch Street Thornbury (the Original Property).  On or about 17 September 2003 Mr and Mrs Kerasovitis transferred the Original Property to Mr and Mrs Ribbera as a gift.

6. On or about 27 October 2003 the Original Property was subdivided into two lots:

   (a)Lot 1 on Plan of Subdivision 518214T, Certificate of Title Volume 10760 Folio 171 (174A Gooch Street, Thornbury); and

   (b)Lot 2 on Plan of Subdivision 518214T, Certificate of Title Volume 10760 Folio 172 (174B Gooch Street, Thornbury);

   (the Gooch Street properties