Scott Pascoe as Trustee of the Bankrupt Estates of Peter Voukidis (deceased) and Kathy Voukidis v Christos Voukidis

[2025] NSWSC 398

Supreme Court

New South Wales

Medium Neutral Citation:

Scott Pascoe as Trustee of the Bankrupt Estates of Peter Voukidis (deceased) and Kathy Voukidis v Christos Voukidis [2025] NSWSC 398

Hearing dates:

28 April 2025

Date of orders:

28 April 2025

Decision date:

28 April 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order that, pursuant to s 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings between the parties herein numbered 2024/00474478 in the Local Court of New South Wales at Sydney be removed to this Court.

(2) Order that, pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings so removed to this Court be transferred to the Federal Circuit and Family Court of Australia (Division 2).

(3) Order that the costs of, and incidental to, the summons filed in this Court, including the costs of this application, be costs in the cause.

Catchwords:

CIVIL PROCEDURE – cross-vesting – Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) – application for transfer of proceedings to the Federal Circuit and Family Court of Australia (Division 2) – proceedings concern bankruptcy matters – orders for transfer made

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)

Cases Cited:

Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32

Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277; [2016] NSWCA 20

Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320; [2002] NSWCA 250

Scott v Bagshaw (2000) 99 FCR 573; [2000] FCA 816

Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440

Category:

Principal judgment

Parties:

Scott Pascoe (plaintiff)
Christos Voukidis (defendant)

Representation:

Counsel:
R Size (plaintiff)
P Bolster (defendant)

Solicitors:
Hall & Wilcox (plaintiff)
CLIC Law Group (defendant)

File Number(s):

2025/00106905

Publication restriction:

N/A

EX TEMPORE JUDGMENT

1. The plaintiff, Scott Pascoe, is the trustee of two bankrupt estates – those of Peter Voukidis (now deceased) and Kathy Voukidis. The defendant, Christos Voukidis, is the son of Peter and Kathy Voukidis.

2. The defendant filed a statement of claim against the plaintiff in the Small Claims Division of the Local Court of New South Wales on 20 December 2024. The defendant alleges that, in effect, the plaintiff has wrongfully deprived him of a motor vehicle and safe, which the defendant says are both his.

3. In his summons filed in this Court on 19 March 2025, the plaintiff contends that the Local Court does not have jurisdiction to hear the proceedings pursuant to s 27(1) of the Bankruptcy Act 1966 (Cth), and seeks orders under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) (‘the Cross-Vesting Act’) such that the proceedings be removed to this Court and, then, further removed and transferred to the Federal Circuit and Family Court of Australia (Division 2). The plaintiff also seeks an order that the defendant pay his costs of and incidental to this application, on an indemnity basis.

4. It is helpful to briefly outline the allegations against the plaintiff, as derived from the statement of claim.

Background

5. Kathy Voukidis became bankrupt in July 2021 and a trustee was appointed by the Official Receiver to manage her estate. That trustee was replaced with the plaintiff by orders made by the Federal Circuit and Family Court (Division 2) on 22 May 2022.

6. Kathy Voukidis owned a home at Burwood (‘the property’) which was sold at auction on 7 December 2024. The defendant ordinarily possessed the property before its sale. Two items were, relevantly, kept at the property. The first was a safe. The second was a 2006 S40 Volvo Sedan (‘the vehicle’). The defendant alleges that he is, and was at all times, the owner of the safe and the vehicle.

7. Between 23 October 2024 and 31 October 2024, the defendant demanded that the plaintiff allow him to access, remove and open the safe. The defendant was unsuccessful.

8. Between 24 October 2024 and 28 October 2024, the defendant was also advised that the vehicle had been removed from the property and placed into storage with the plaintiff’s agent. The defendant reported the vehicle to police as stolen on 5 November 2024.

9. The defendant alleges that the plaintiff has deprived him of possession of the vehicle and safe and that he is entitled to them. He does so on two grounds. First, he argues that, as the owner of the vehicle and safe, that property was not vested in the plaintiff pursuant to s 58 of the Bankruptcy Act. Alternatively, in relation to the vehicle, he argues that it was not divisible property within the meaning of s 116(2)(ca) of the Bankruptcy Act. The defendant seeks orders that the vehicle and safe be delivered to him, and damages for loss, conversion and detention if that is not possible.

10. The application before this Court is not concerned with those issues. The issue is instead whether the proceeding should be removed to and heard in the Federal Circuit and Family Court of Australia (Division 2).

Cross-Vesting Application

11. The plaintiff submitted that the Local Court could not hear the matter because it concerned bankruptcy matters, which (relevantly) fall within the exclusive and concurrent jurisdiction of the Federal Circuit and Family Court (Division 2), pursuant to s 27(1) of the Bankruptcy Act (subject to two presently irrelevant exceptions), and that it should be transferred there. He submitted that a two-step process was required for the Court to do so.

12. First, the plaintiff submitted that the matter should be removed to this Court pursuant to an order under s 8(1) of the Cross-Vesting Act. He submitted that the matter is pending in “a court, other than the Supreme Court, of the State” (s 8(1)(a)(i)) and that an order should be made so that “consideration can be given to whether the relevant proceeding should be transferred to another court” (s 8(1)(b)(ii)). That submission should be accepted. The “consideration” to which that section contemplates, relevantly here, is whether an order should be made under s 5(1): Resarta Pty Ltd v Finemore (2002) 55 NSWLR 320; [2002] NSWCA 250 at [12]. Thus, as the parties accepted, no distinct question arises under s 8: if no case for a transfer under s 5(1) is made out, no removal order should be made.

13. Secondly, the plaintiff submitted that, the proceeding having been transferred to this Court pursuant to s 8(1) and thereby engaging s 5(1)(a), the Court could and should transfer it to the Federal Circuit and Family Court (Division 2), having regard to the considerations outlined in s 5(1)(b)(ii) of the Cross-Vesting Act. He argued that the proceeding “would have been incapable of being instituted in the Supreme Court” (s 5(1)(b)(ii)(A)), that it involves “questions as to the application” of Commonwealth bankruptcy law that are “not within the jurisdiction of the Supreme Court” (s 5(1)(b)(ii)(B)) and that it was in the interests of justice to ensure the proceeding is determined by a "court that possesses jurisdiction” to do so (s 5(1)(b)(ii)(C).

14. It should be noted that, although the plaintiff argued that ss 5(1)(b)(ii)(A)-(C) were each satisfied, they are not preconditions to the exercise of the power to transfer the proceedings, but are simply mandatory relevant considerations: Comino v Kremetis (2023) 110 NSWLR 224; [2023] NSWSC 32 at [73]. Further, as is apparent from the outline of the plaintiff’s argument, the substantive point underpinning satisfaction of those provisions is the conferral of exclusive and concurrent jurisdiction on (relevantly) the Federal Circuit and Family Court (Division 2) by s 27(1) of the Bankruptcy Act given the nature of the defendant’s claims in the proceedings: put simply, the defendant’s claims are, essentially, bankruptcy matters.

15. Section 27(1) of the Bankruptcy Act confers concurrent and exclusive “jurisdiction in bankruptcy”. The meaning of that phrase is informed by, and takes its colour from, s 5 of the Bankruptcy Act – which defines “bankruptcy, in relation to jurisdiction or proceedings” as meaning “any jurisdiction or proceedings under or by virtue of this Act”.

16. The authorities recognise that central to the “jurisdiction in bankruptcy is the authority to decide what property is, and what property is not, vested in the trustee in bankruptcy” and that an “application for orders that ‘would have a necessary adverse effect on the title of’ the [t]rustee is a matter in bankruptcy”: Mateljan v HTT Huntley Heritage Pty Ltd (2016) 111 ACSR 277; [2016] NSWCA 20 at [26], citing Scott v Bagshaw (2000) 99 FCR 573; [2000] FCA 816 at [20]. Thus, the making of an order that would have a necessary adverse effect on the title of the trustee in bankruptcy is a matter arising under the Bankruptcy Act. 

17. That is this case. The defendant’s claim is that, as the owner of the property, the vehicle and the safe did not vest in the trustee. It follows, therefore, that, given the substance of what is alleged, the defendant’s claim is a matter arising under the Bankruptcy Act. The subject matter of the proceedings is, as the plaintiff submitted (and as the defendant ultimately accepted), relevantly here, within the exclusive jurisdiction of the Federal Circuit and Family Court (Division 2). It necessarily also follows that it is “more appropriate” that the proceedings be determined by that court, and that the transfer to it must occur: Valceski v Valceski (2007) 70 NSWLR 36; [2007] NSWSC 440 at [70].

Orders

18. For these reasons, I make the following orders:

1. Order that, pursuant to s 8(1)(b)(ii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings between the parties herein numbered 2024/00474478 in the Local Court of New South Wales at Sydney be removed to this Court.

2. Order that, pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), the proceedings so removed to this Court be transferred to the Federal Circuit and Family Court of Australia (Division 2).

3. Order that the costs of, and incidental to, the summons filed in this Court, including the costs of this application, be costs in the cause.

**********

Decision last updated: 28 April 2025