Sialepis v Cosco

[1999] FCA 776

FEDERAL COURT OF AUSTRALIA

Sialepis v Cosco [1999] FCA 776

DIMITRA JANE SIALEPIS v JOHN NICCOLO COSCO & ANOR

N 7615 of 1999

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY
7 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7615 OF 1999

BETWEEN:

DIMITRA JANE SIALEPIS
Applicant

AND:

JOHN NICCOLO COSCO
First Respondent

KAY VIOLET COSCO
Second Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	7 JUNE 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant obtained an order on 3 June from a Deputy Registrar extending the time for compliance with a bankruptcy notice that had been served on her on 17 May.  The extension was granted to 6 July.  The application was made ex parte and was supported by an affidavit.  From the documentation it appears that it is the applicant’s contention that she has a counter-claim, set-off or cross demand equal to or exceeding the amount in the bankruptcy notice which she could not have set up in the proceedings which led to its issue.

2. The bankruptcy notice itself is based upon a debt arising for costs in Supreme Court proceedings that were concluded unfavourably to the applicant.  The amount of the debt at the time of the notice was $25,646.53 following a judgment entered in a Local Court on 24 September 1998 for a somewhat lesser figure, the balance being interest and some costs.

3. The respondents have moved today, by an urgent motion, to have the Deputy Registrar's order set aside.  The argument advanced is that the application to set aside the bankruptcy notice and to extend time are incompetent in that the affidavit fails to comply with the provisions of Order 77 Rule 13 of the Federal Court Rules which deals with applications made under s 41 of the Bankruptcy Act for this type of relief.

4. There is much to be said for the argument of the respondents on the competency or otherwise of the application.  The affidavit does not attempt to set up what the cross-claim or counter-claim is and I have had to be addressed at some length by counsel for the applicant in order to obtain even the slightest superficial understanding of what is in fact a quite difficult claim, which is itself the result of a significant number of other proceedings both in the Family Court and in the Supreme Court.

5. The affidavit certainly does not comply with Order 77 Rule 13 and will require significant addition or amendment before it will.  Having listened to counsel for the applicant, I think it will be very difficult to amend, expand or supplement the affidavit satisfactorily for a number of reasons, not least because the so-called counter-claim is based upon a contention that the applicant can reopen or recommence proceedings already disposed of by the Supreme Court, albeit by orders not made on the merits of the claim but on the pleadings.  On his explanation I should have thought that the chances of getting this case into an arguable form sufficient to persuade the Supreme Court not to strike it out when the new claim is filed must be very slight.

6. Nevertheless, it is not uncommon in circumstances such as this to enable an applicant to have a full opportunity to present the case which she wants to advance.  The Deputy Registrar’s order merely extended the time for compliance to 6 July.  On her counsel's statement, the applicant is not going to comply with the requirements of the bankruptcy notice by 6 July, but would wish to establish at that time, to the satisfaction of this Court, that she has a sufficiently arguable case to present to the Supreme Court, so as to enable this Court to set aside the bankruptcy notice.

7. Notwithstanding the defects of her application at the present time, and my significant doubts that she will ever be able to satisfy the relevant criteria, I am prepared to allow the application to set aside the bankruptcy notice to be heard on 6 July as presently planned, and to stand over to that hearing the respondent's motion to set aside the Deputy Registrar's order.  I think that the extension of time to 6 July was within the Deputy Registrar's discretion even though the documentation was severely lacking, and notwithstanding my significant doubts that she will ever be able to succeed in the application, I think that it would be more in accord with the interests of justice that the matter be allowed to be heard. 

8. The motion to set aside the Deputy Registrar’s order will be stood over to the hearing of the application to set aside the bankruptcy notice on 6 July.  The respondents’ costs of the application are to abide the result of the motion on that day although as I see it, they will almost certainly be ordered to be paid by the applicant.  The reason I do not make the order today is to enable the Court to see at the time whether there is any additional strength in the applicant's application that is not presently obvious.  I can see no circumstances in which the respondents would be ordered to pay the costs of the motion notwithstanding its dismissal at that time.

   [AFTER DISCUSSION]

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld.

Associate:

Dated:             7 June 1999

Counsel for the Applicant:	Mr A. S. Howen
Solicitor for the Applicant:	Photios Vouroudis & Co
Counsel for the Respondent:	Mr R. S. Angyal
Solicitor for the Respondent:	Hickson Wisewoulds
Date of Hearing:	7 June 1999
Date of Judgment:	7 June 1999