Theo v Edwards

Case [2025] FCA 605

FEDERAL COURT OF AUSTRALIA

Theo v Edwards [2025] FCA 605

File numbers: QUD 486 of 2024
QUD 669 of 2024
Judgment of: DERRINGTON J
Date of judgment: 29 April 2025
Date of publication of reasons: 12 June 2025
Catchwords: PRACTICE AND PROCEDURE – interim application for review of decision of judicial registrar – application designed, prima facie, to vex or harass – failure to attend a case management hearing – oral application made for default judgment under r 5.23 of the Federal Court Rules 2011 (Cth) – whether respondent in default – review application dismissed in toto – costs incurred in relation to review application to be assessed on indemnity basis
Legislation:

Bankruptcy Act 1966 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Australian Communications and Media Authority v Jones [2023] FCA 246

Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 10) [2009] FCA 498

ENR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 834

Falaniko v Minister For Immigration, Citizenship and Multicultural Affairs [2024] FCA 111

Hadchiti v Minister for Immigration and Border Protection [2018] FCA 386

Hamod v New South Wales (2002) 188 ALR 659

In the matter of Punters Show Pty Limited [2017] NSWSC 605

KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361

Kiprovski v Ace Office Furniture Pty Ltd [2017] FCA 1174

Nesor Nominees Pty Ltd v Big Boys BBQ Qld Pty Ltd (2019) 146 IPR 1

Obel v Central Desert Regional Council (No 4) [2023] FCA 967

Pieman Resources Pty Ltd v Monks [2025] FCA 88

Tax Practitioners Board v Van Stroe [2022] FCA 482
Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 22
Date of hearing: 29 April 2025
Counsel for the Applicant:  Mr M van der Walt
Solicitor for the Applicant: Walt Allan
Counsel for the Respondent: The Respondent did not appear

ORDERS

QUD 486 of 2024
BETWEEN:

ATHINA THEO

Applicant
AND:

DAVID EDWARDS

Respondent
QUD 669 of 2024
BETWEEN:

ATHINA THEO AS EXECUTOR OF THE ESTATE OF SOLON THEO DECEASED

Applicant
AND:

DAVID EDWARDS

Respondent

ORDER MADE BY:

DERRINGTON J

DATE OF ORDER:

29 APRIL 2025

THE COURT ORDERS THAT:

1.The interim application filed by the respondent on 8 April 2025 in QUD486/2024 (the Application) be dismissed.

2.The respondent pay the costs of:

(a)the applicant in QUD669/2024;

(b)the applicant in QUD468/2024;

(c)Mr Alexander Theologhidis; and,

(d)Mr Martin van der Walt;

of the Application on an indemnity basis.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

  1. By an interlocutory application lodged 3 April 2025 in proceeding QUD486/2024 (the Review Application), Mr David Edwards seeks orders under both the Bankruptcy Act 1966 (Cth) and the Federal Court Rules 2011 (Cth) (the Rules) that (a) “the orders made by Judicial Registrar Buckingham on 21.03.2025 in proceedings numbered 486/2024 and 669/2024 be set aside”; (b) “each of…

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Details
AGLC
Theo v Edwards [2025] FCA 605
Case
[2025] FCA 605
Decision Date

CaseChat Overview and Summary

The case of Theo v Edwards involved the defendant, Mr Edwards, making an interim application for review of a decision made by a judicial registrar. This was in response to an oral application made for default judgment under rule 5.23 of the Federal Court Rules 2011 (Cth). The dispute arose out of a failure by Mr Edwards to attend a case management hearing. The primary issue before the court was whether Mr Edwards was in default, and if so, whether the review application was vexatious or intended to harass the other party.

The court held that the review application was designed to vex or harass and dismissed it in its entirety. The court found that the application was frivolous and an abuse of process. The court further found that Mr Edwards was in default and ordered that the respondent pay the costs incurred in relation to the review application on an indemnity basis. The court considered the conduct of Mr Edwards in making the application and found that it was an abuse of the court's process.

The final orders of the court were that the interim application filed by the respondent on 8 April 2025 in QUD486/2024 be dismissed and that the respondent pay the costs of the applicant in QUD669/2024, the applicant in QUD468/2024, Mr Alexander Theologhidis, and Mr Martin van der Walt on an indemnity basis. The court's decision serves as a reminder of the importance of adhering to the rules of court and the consequences of making frivolous or vexatious applications.

Orders

Orders of the court

1. The interim application filed by the respondent on 8 April 2025 in QUD486/2024 (the Application) be dismissed.

2. The respondent pay the costs of:

(a) the applicant in QUD669/2024;

(b) the applicant in QUD468/2024;

(c) Mr Alexander Theologhidis; and,

(d) Mr Martin van der Walt;

of the Application on an indemnity basis.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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