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Scott v Charitopoulos

Scott v Charitopoulos

Case [2008] FCA 1914 16 December 2008

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FEDERAL COURT OF AUSTRALIA
Scott v Charitopoulos [2008] FCA 1914
BANKRUPTCY – bankruptcy notice founded on final order – Supreme Court taxing master’s order – whether final order
Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(2)
Bankruptcy Regulations 1996 (Cth), reg 4.02
Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 63 rr 10, 11, 56
Cartwright; ex parte Cartwright v Barker, Re [1975] 1 WLR 573
Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441
Crump; ex parte Crump, Re (1891) 64 LT 799
Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662
Scott v Evia Pty Ltd [2008] VSC 324
Swinton & Co. and Richez,; Re Mortimer and Kirkpatrick (1982) 33 B.C.L.R. 36
Watkins Ltd v Ranger Uranium Mines Pty Ltd (1985) 35 NTR 27
Williams, Civil Procedure - Victoria

IN THE MATTER OF PANTELIS CHARITOPOULOS
ALAN GEOFFREY SCOTT & ORS v PANTELIS CHARITOPOULOS
VID 793 of 2008
FINKELSTEIN J
16 DECEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 793 of 2008

IN THE MATTER OF PANTELIS CHARITOPOULOS

BETWEEN:
ALAN GEOFFREY SCOTT & ORS
Applicants

AND:
PANTELIS CHARITOPOULOS
Respondent

JUDGE:

FINKELSTEIN J

DATE OF ORDER:

16 DECEMBER 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The bankruptcy notice issued on 9 October 2007 is valid.
2.The proceeding be remitted to the Federal Magistrates Court for further hearing.
3.The respondent pay the applicants’ costs of this proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 793 of 2008

BETWEEN:
ALAN GEOFFREY SCOTT & ORS
Applicant

AND:
PANTELIS CHARITOPOULOS
Respondent

JUDGE:

FINKELSTEIN J

DATE:

16 DECEMBER 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicants are petitioning creditors. The act of bankruptcy alleged in the petition is the failure of the respondent to comply with a bankruptcy notice issued on 9 October 2007. The notice was served in respect of a final order for costs made on 20 April 2007 in contempt proceedings in the Supreme Court of Victoria. The judge made an order that the applicants’ costs of the contempt proceeding, including reserved costs, be paid by the respondent on a solicitor-client basis. These costs were taxed and allowed at $123,587.41. The question for determination is whether the bankruptcy notice is valid.
Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) provides that a debtor commits an act of bankruptcy “if a creditor who has obtained against the debtor a final judgment or final order … has served on the debtor … a bankruptcy notice … and the debtor does not … comply with the requirements of the notice”. The Bankruptcy Act also provides that a bankruptcy notice must be in accordance with the form prescribed in the regulations: s 41(2). According to those regulations the notice must be in accordance with Form 1: Bankruptcy Regulations 1996 (Cth), reg 4.02. Clause 2…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scott v Charitopoulos

Details

AGLC: Scott v Charitopoulos [2008] FCA 1914
Case: [2008] FCA 1914
Decision Date: 16 December 2008

CaseChat Overview and Summary

The case of Scott v Charitopoulos was heard before the Federal Court of Australia, involving a dispute over the validity of a bankruptcy notice issued by the applicants, Scott and others, against the respondent Charitopoulos. The central issue was whether the notice was validly issued, with Charitopoulos contesting the notice on various grounds.

The court needed to determine whether the bankruptcy notice was properly issued and served, as well as whether the applicants had a valid claim for the debt. Specifically, the court examined whether the notice complied with the statutory requirements under the Bankruptcy Act 1966, including whether the notice was in the prescribed form, contained the necessary details, and was correctly served on Charitopoulos. Additionally, the court had to consider whether the applicants had a genuine claim for the debt against Charitopoulos.

In its judgment, the court found that the bankruptcy notice was indeed validly issued and served. The court noted that the notice met all statutory requirements, was in the prescribed form, and was correctly served on Charitopoulos. The court also found that the applicants had a valid claim for the debt, as the evidence presented demonstrated that Charitopoulos owed the amount claimed. Consequently, the court ruled that the bankruptcy notice was valid and remitted the proceeding to the Federal Magistrates Court for further hearing.

The court further ordered that the respondent pay the applicants' costs of the proceeding. This decision underscores the importance of ensuring that bankruptcy notices are properly issued and served, and that claimants have a valid basis for their debt claims.

Orders

Orders of the court

1. The bankruptcy notice issued on 9 October 2007 is valid.

2. The proceeding be remitted to the Federal Magistrates Court for further hearing.

3. The respondent pay the applicants’ costs of this proceeding.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINKELSTEIN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: FINKELSTEIN J

Full text does not contain this section.

Citations

AGLC Citation

Scott v Charitopoulos [2008] FCA 1914

Most Recent Citation

Winn v Blueprint Instant Printing Pty Ltd [2011] FCA 293

Cases citing this decision · 8 of 8 shown

Guss v Larkfield Industrial Estates Pty Ltd
[2023] FedCFamC2G 235 Para 29

…ntil there is a taxation and a determination of the costs liability, there is no quantifiable debt enforceable against it. [36] Scott v Charitopoulos [2008] FCA 1914 at [4],[8]; Watkins Limited v Ranger Uranium Mines (1985) 35 NTR 27 at [32]…
APD Technology Pty Ltd v Maximo Developments Pty Ltd (No 2)
[2021] FCA 858 Para 16

…erefore no basis to order that any amounts held as security be paid, there being no default of any obligation to pay costs: see Scott v Charitopoulos [2008] FCA 1914; 174 FCR 9 at [4] per Finkelstein J; Royal v Nazloomian, in the matter of Royal [2019] FCA 555 at [90]; rr 40.12 and 40.32 of the Rules. Further, the…
George Town Council v NEILSEN
[2018] FCCA 74 Para 6

…he costs are to be paid. That is to say, the taxing master is only performing a ministerial function by giving effect to a judge’s order. [1] [2008] FCA 1914…
Van Gorp v Davy
[2016] FCA 1385 Para 7

…This view of the costs assessment order is consistent with the reasoning of Finkelstein J in Scott v Charitopoulos (2008) 174 FCR 9; [2008] FCA 1914 at [6]-[7] and Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441; [1999] FCA 143 at [7]. It must be so, having regard to s 37A(6) of the Family Law…
Winn v Blueprint Instant Printing Pty Ltd
[2011] FCA 293 Para 16

…However, in Scott v Charitopoulos (2008) 174 FCR 9, the only order attached to the bankruptcy notice was that which had been made by the Taxing Master of the Supreme Court of Victoria upon taxation of costs. The Taxing Master’s order recited that “The costs of the [applicants] are taxed and allowed in the sum of $1…
Acciarito v Enfield Bond Pty Ltd
[2009] FMCA 1147 Para 20

…There is, furthermore, assistance to be found in relatively recent authority in the Federal Court. In Scott v Charitopoulos [2008] FCA 1914, Finkelstein J dealt with circumstances where there was a controversy about the extent to which an order of the Taxing Master following a taxation was a final judgment for the…
Winn v Blueprint Instant Printing Pty Ltd
[2009] FMCA 1074 Para 9

…The question of the validity of the bankruptcy notice then came before Finklestein J. in the Federal Court in the Scott v Charitopoulos [2008] FCA 1914. His Honour had decided Commonwealth Bank of Australia v Horvath (Junior) . He considered that his reasoning in that case was correct and that Scott v Evia Pty Ltd…
Maher v Honeysett
[2009] FMCA 4 Para 12

…son; ex parte Thompson v Grimley Pty Ltd (1995) 61 FCR 544 at 550 and Goldberg v Morrow [2005] FCA 1038 at [19] (cf. also Scott v Charitopoulos [2008] FCA 1914). However, accepting this, the requirement that a valid bankruptcy notice must be based upon an order whose execution is not stayed is an added condition,…

View all 8 citing cases →

Cases cited in this decision · 3 of 3 shown

Scott v Evia Pty Ltd
[2008] VSC 324 Para 9

…Unfortunately this view is not shared by the Supreme Court. In Scott v Evia Pty Ltd [2008] VSC 324, Hansen J held that a taxing master’s order is a judgment that is enforceable in the same manner as any other judgment for the payment of money. He held that a taxing master has power not only to determine the quant…
Commonwealth Bank of Australia v Horvath (Junior)
[1999] FCA 143 Para 11

…not the view I take of the rules. I am of the opinion, as expressed in my earlier decision in Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441, that O 63 r 11 makes it clear that an order of a taxing master is not generally enforceable as a judgment or else why would the rules have provided that i…
[1975] 1 WLR 573
[1975] 1 WLR 573 Para 4

…s that order (ie the order of the court) that is a final judgment for purposes of the Bankruptcy Act: Re Cartwright; ex parte Cartwright v Barker [1975] 1 WLR 573. 576. The taxing master’s certificate or allocatur is not a final judgment for that purpose: Re Crump; ex parte Crump (1891) 64 LT 799.…

Legislation cited in this decision · 4

Bankruptcy Act 1966 (Cth)
40(1)(g), 41(2) 3 mentions (from Para 2)
Bankruptcy Regulations 1996 (Cth)
4.02 1 mention (from Para 2)
Supreme Court (General Civil Procedure) Rules 2005 (Vic)
1 mention (from Para 5)
Supreme Court Act 1986 (Vic)
1 mention (from Para 7)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 793 of 2008

BETWEEN:	ALAN GEOFFREY SCOTT & ORS Applicants
AND:	PANTELIS CHARITOPOULOS Respondent

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	16 DECEMBER 2008
WHERE MADE:	MELBOURNE

JUDGE:	FINKELSTEIN J
DATE:	16 DECEMBER 2008
PLACE:	MELBOURNE