Spiliotopoulos v Jackson - [2020] FCCA 870

FEDERAL CIRCUIT COURT OF AUSTRALIA

SPILIOTOPOULOS v JACKSON

[2020] FCCA 870

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – application to go behind judgment.

LIMITATIONS – Whether limitation period extended by reason of respondent’s conduct.

Legislation:

Bankruptcy Act 1966 (Cth), ss.30, 40, 41

Limitation Act 1969 (NSW), ss.14, 55

Cases cited:

Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971

Spiliotopoulos v National Australia Bank Limited [2017] NSWSC 1069

King v Victor Parsons & Co [1973] 1 All ER 206

Ramsay Health Care Australia Pty Ltd v Compton (2017) 261 CLR 132

Katter v Melhem (No 2) [2014] FCA 1176

Seymour v Seymour (1996) 40 NSWLR 358

Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435

Applicant:

ARTHUR SPILIOTOPOULOS

Respondent:

LORRAINE JACKSON

File Number:

SYG 14 of 2019

Judgment of:

Judge Cameron

Hearing date:

27 August 2019

Date of Last Submission:

27 August 2019

Delivered at:

Sydney

Delivered on:

20 April 2020

REPRESENTATION

Solicitors for the Applicant:

Mr T Hall of Hall Partners

Counsel for the Respondent:

Mr H Altan

Solicitors for the Respondent:

Willis & Bowring

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 14 of 2019

ARTHUR SPILIOTOPOULOS

Applicant

And

LORRAINE JACKSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 4 January 2019 the applicant, Mr Spiliotopoulos, filed an application to set aside bankruptcy notice BN232143 (“Bankruptcy Notice”) which had been issued at the request of the Respondent, Ms Jackson, and served on him on 18 December 2019. These reasons concern that application.

BACKGROUND

On 16 March 2016 Mr Spiliotopoulos commenced New South Wales Supreme Court proceedings 2015/82205 (“Supreme Court Proceedings”) against National Australia Bank (“NAB”), the Registrar General (of New South Wales it is to be presumed), Ms Jackson and his former wife, Ms Spiliotopoulos. Relevantly Mr Spiliotopoulos alleged that Ms Jackson had fraudulently or negligently purported to witness his signature on a mortgage to the NAB of certain land (“Property”). Justice Harrison summarily dismissed those proceedings on 21 July 2017: Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971.
Following summary dismissal, Ms Jackson filed a notice of motion seeking her costs of the Supreme Court Proceedings. On 27 September 2017, Harrison J ordered Mr Spiliotopoulos to pay Ms Jackson’s costs “on an ordinary basis prior to and including 20 August 2016 and thereafter on an indemnity basis”. Mr Spiliotopoulos was also ordered to pay the costs of the Notice of Motion: Spiliotopoulos v National Australia Bank Limited [2017] NSWSC 1069 (“Supreme Court Costs Proceedings”).
Ms Jackson’s costs were assessed and certificates of determination for $129,289.30 and $4,216.58 were issued on 11 December 2018. Upon registration of those certificates, on 13 December 2018 judgment for $133,505.88 was entered in Ms Jackson’s favour in the District Court of New South Wales.
The Bankruptcy Notice which is the subject of this proceeding was issued on 17 December 2019 and was based on the District Court judgment.

APPLICANT’S APPLICATION

Mr Spiliotopoulos sought the following relief in his application filed on 4…

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 Spiliotopoulos v Jackson

Details

AGLC: Spiliotopoulos v Jackson [2020] FCCA 870
Case: [2020] FCCA 870
Decision Date: 20 April 2020

CaseChat Overview and Summary

In the matter of *Spiliotopoulos v Jackson*, heard before Judge Cameron in the Federal Court of Australia, the applicant, Mr. Spiliotopoulos, sought to set aside a bankruptcy notice issued by the respondent, Mr. Jackson. The underlying dispute concerned a judgment debt owed by Mr. Spiliotopoulos to Mr. Jackson, which Mr. Spiliotopoulos contended should be set aside.

The primary legal issues before the Court were whether the bankruptcy notice should be set aside on the grounds that Mr. Spiliotopoulos had a counter-claim, set-off or cross-demand that equalled or exceeded the judgment debt, and whether the limitation period for bringing proceedings to set aside the judgment had been extended due to the respondent's conduct.

Judge Cameron considered the principles governing applications to set aside bankruptcy notices, particularly the requirement for a counter-claim, set-off, or cross-demand to be genuine and substantial. The Court also examined the application of limitation periods in the context of setting aside judgments, noting that such applications are generally subject to strict time limits unless exceptional circumstances are demonstrated. The Court found that the applicant had not established a sufficient counter-claim or cross-demand to warrant setting aside the bankruptcy notice, nor had he demonstrated grounds for extending the limitation period to challenge the underlying judgment.

Consequently, the Court dismissed the application to set aside the bankruptcy notice and ordered that Mr. Spiliotopoulos pay Mr. Jackson's costs.

Orders