Sopikiotis v Owners Corporation RP017740

[2013] FCCA 2428

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOPIKIOTIS  v OWNERS CORPORATION RP017740 & ANOR [2013] FCCA 2428

Catchwords:
BANKRUPTCY – Section 153 application for annulment/setting aside bankruptcy – application to have trustees caveat removed from property – stay on bankruptcy – restraint of trustee – many prior applications to Courts, all unsuccessful – issue estoppel, res judicata and Anshun estoppel – application dismissed.

Legislation:  

Bankruptcy Act1966, s.153B

Applicant: MARIA SOPIKIOTIS

Respondent: OWNERS CORPORATION RP017740

Intervener: PETER ROBERT VINCE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIA SOPIKIOTIS

File Numbers: MLG 1441 of 2013 and MLG1564 of 2013

Judgment of: Judge O’Dwyer

Hearing date: 11 October 2013

Date of Last Submission: 11 October 2013

Delivered at: Melbourne

Delivered on: 11 October 2013

REPRESENTATION:

The Applicant: In Person

Counsel for the Respondent: Mr Harris

Solicitors for the Respondent: LMS Lawyers

Counsel for the Intervener: Ms Gobbo

Solicitors for the Intervener: Maddocks Lawyers

ORDERS:

1. The Applicant’s oral application for the appointment of a pro bono Barrister is refused.

2. The application filed 2 September 2013 is dismissed.

3. The Applicant bankrupt pay the costs of the Respondent, such costs to be taxed and paid from the bankrupt’s estate pursuant to the Bankruptcy Act 1966.

4. The Applicant bankrupt pay the costs of the trustee in bankruptcy, such costs to be taxed and paid from the bankrupt’s estate pursuant to the Bankruptcy Act 1966.

5. Otherwise all extant applications are dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT MELBOURNE

MLG 1441 of 2013 MLG 1564 of 2013

MARIA SOPIKIOTIS

Applicant

OWNERS CORPORATION RP017740

Respondent

And

PETER ROBERT VINCE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIA SOPIKIOTIS

Intervener

REASONS FOR JUDGMENT

(revised from transcript)

1. This matter comes before me today in respect of the application filed by Ms Sopikiotis on 2 September 2013 wherein, pursuant to section 153B of the Bankruptcy Act 1966 (“the Act”), the applicant seeks an annulment of the sequestration order made on 5 July 2011 and various other orders; such as the removal of a caveat lodged by the trustee in bankruptcy and follow-on orders for payment of her costs on a successful application and the Intervener’s  (“the Trustee”) costs to also be paid by the petitioning creditor.

2. At the outset, the applicant sought to have the matter adjourned off to allow a referral to a pro bono lawyer to represent her which, for the reasons I have already alluded to, was refused and I have proceeded with hearing from the applicant in relation to her arguments in support of the orders she seeks today under this application. 

3. It is not the first time that Ms Sopikiotis has appeared before me. The first occasion was on 26 September 2013 and on that occasion there was an urgent application by the applicant arising from the desperate circumstances she found herself in; they being, that she had been evicted from her residence and she sought to have a right of re-entry, and also to have the trustee removed.  Significantly, she sought also to have an ex parte order made based upon the urgency of her situation and the clear inference that the trustee had somehow acted in an improper manner. The application for an ex parte hearing came before me in Chambers to see whether it should be considered appropriate for an ex parte hearing, but on discovering that there were other parties involved with a significant litigation history, I required the substantive application to be served. On 26 September 2013 I dismissed that substantive application for the reasons given on that occasion.  Significantly, some of those reasons are also pertinent to the application here today.

4. Ms Sopikiotis has had, over the last couple of years, extensive proceedings in various Courts concerning the basis for the judgment debt against her; namely, proceedings in VCAT, in the Supreme Court of Victoria, in the Federal Court on a number of occasions, including the Full Court of the Federal Court and in this Court on a number of occasions, culminating in an application for Special Leave to appeal to the High Court, which was unsuccessful.

5. The background and circumstances of the judgment debt arises from a lengthy period of time where it is said – which has always been disputed by the applicant – fees were incurred payable to the respondent Body Corporate involved with the units in which the applicant is one unit holder.  They accumulated over the years to the extent that the debt was sufficient to justify the Body Corporate taking Court proceedings to recover the debt owed.

6. The debt owed is in considerable dispute on the part of the applicant. She asserts that she has not been provided with the underlying accounts for whatever services said to have been provided for the Body Corporate and she disputes the amounts.  She also disputes the debts claimed, in part, on the basis of them being statute barred at the time judgment was entered against her.  She also disputes such things as the service of the bankruptcy notice on her, pointing out that the representatives of the Body Corporate that sued her knew of her address, but got it wrong.

7. She makes a number of complaints about the lack of proper process on the part of the Body Corporate and its legal representatives.  She complains also about the lack of consideration by the various Courts that she has appeared before about the issues that she has raised, and always raised. Indeed, before sitting down after addressing me, she made the global comment that all of these things were put to the various Courts before whom she has appeared to defend her position.

8. It is without doubt that the applicant finds herself in a very invidious position for which she blames the Courts, the representatives of the Body Corporate and the unit holders. She finds herself now without accommodation, living out of a car. Her ready access to her personal possessions is frustrated by the fact that they are presently held in storage.  By anybody’s consideration, her difficulties are not insubstantial and there has to be some sympathy for the position that she now finds herself in. But, having said that, where the blame might lie for that situation is another issue.  She certainly attributes blame to all those parties I mentioned, but avoids any consideration that somehow she may have caused some of the problems she now faces.

9. In support of her application filed on 2 September 2013, which is now before this Court, she filed an affidavit in support on that day which is very short.  It states:

   …I am the applicant and, at the date of the sequestration order, I was solvent.

   The “act of bankruptcy” did not occur.

   The creditor’s petition is based on an alleged debt that is non-existent.

10. They are the three bases for the application.

11. I accept that the applicant, Ms Sopikiotis, may not have a full grasp of the legal principles involved but, nonetheless, they are legal principles and they do have application to her case.

12. Of significance, in a full consideration, in my view, of all the arguments that have been put before me by Ms Sopikiotis, Burchardt FM (as he then was) considered all of them and made rulings and findings which answered all of the suggested claimed bases for the sequestration order being annulled or, set aside. Further, on appeal, in respect of his decision, Kenny J supported the determination of Burchardt FM and, again in her judgment, she was also made aware of the nature of the case put by Ms Sopikiotis; being these being put today.

13. The legal principles involved are, res judicata, or issue estoppel; which, in my view, are very much applicable in this particular case.  I have heard nothing new, substantiated by anything new that would somehow shake my confidence in the appropriateness of earlier decisions made.  There is also the further submission made by the Body Corporate’s representative, Mr Harris, that there is an Anshun estoppel in any event; that is, the matters that might even have a flavour of something new were matters that were well within the purview and understanding of the applicant, or ought to have been, at the time other matters were litigated and, as a consequence of them not having been litigated, there is an Anshun estoppel.

14. Also, there is a history to these proceedings in the various Courts which discloses an abuse of process on the part of the applicant in bringing this proceeding.  I am certainly of the view that it is an abuse of process and, for that reason also, it adds weight to the overall consideration that there is indeed no substance to the application before me today and that appropriately, it should be dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge O’Dwyer

Date: 11 August 2014