Triantafyllos v Yeo as Trustee of the Bankrupt Estate of Andreas Triantafyllos
[2019] FCA 894
•7 June 2019
FEDERAL COURT OF AUSTRALIA
Triantafyllos v Yeo as Trustee of the Bankrupt Estate of Andreas Triantafyllos [2019] FCA 894
File number(s): VID 267 of 2019 Judge(s): O'BRYAN J Date of judgment: 7 June 2019 Catchwords: PRACTICE AND PROCEDURE – transfer of proceedings to the Federal Circuit Court – where present proceeding and pending proceeding in the Federal Circuit Court both relate to same underlying facts and dispute – where neither party opposes transfer – where factors weigh in favour of transferring proceeding to the Federal Circuit Court Legislation: Federal Court of Australia Act 1976 (Cth) s 32AB
Federal Court Rules 2011 rr 27.11, 27.12(3)
Date of hearing: 7 June 2019 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 10 Solicitor for the Applicant: Mr J Marks of DSA Law Solicitor for the Respondent: Mr I Cull of Pitcher Partners ORDERS
VID 267 of 2019 BETWEEN: ANDREAS TRIANTAFYLLOS
Applicant
AND: ANDREW REGINALD YEO AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREAS TRIANTAFYLLOS
Respondent
JUDGE:
O'BRYAN J
DATE OF ORDER:
7 JUNE 2019
THE COURT ORDERS THAT:
1.Pursuant to Rule 27.11 of the Federal Court Rules 2011, the proceeding be transferred to the Federal Circuit Court.
2.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’BRYAN J:
This proceeding was commenced on 21 March 2019. At the first case management hearing on 12 April 2019, I ordered the applicant to file and serve a statement of claim and listed the matter for a further case management hearing on 7 June 2019.
At the case management hearing on 7 June 2019, the parties sought orders by consent that the proceeding be transferred to the Federal Circuit Court pursuant to Rule 27.11 of the Federal Court Rules 2011. In support of those orders, the respondent read an affidavit of Wade Ballantyne sworn 7 June 2019.
Having heard argument on 7 June 2019, I made the orders sought by the parties transferring this proceeding to the Federal Circuit Court. These are my reasons for making those orders.
Section 32AB(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Court may, by order, transfer a proceeding from this Court to the Federal Circuit Court. Sub-section (2) provides that such an order may be made on the application of a party to the proceeding or by the Court on its own initiative. Sub-section (6) provides that, in deciding whether to transfer the proceeding to the Federal Circuit Court under sub-section (1), the Court must have regard to:
(a)any Rules of Court made under s 32AB;
(b)whether proceedings in respect of an associated matter are pending in the Federal Circuit Court;
(c)whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
I note that sub-section 32AB(8A) provides that the Federal Circuit Court has jurisdiction in a matter that is the subject of a proceeding transferred to it under s 32AB.
Rule 27.11 of the Federal Court Rules 2011 provides for the transfer of proceedings to the Federal Circuit Court. Rule 27.12(3) requires the parties to address the following issues:
(a)whether the proceeding is likely to involve questions of general importance;
(b)whether it would be less expensive and more convenient to the parties if the proceeding were transferred;
(c)whether the proceeding would be determined more quickly if transferred; and
(d)the wishes of the parties.
In this proceeding, Mr Triantafyllos seeks relief under s 90-15 of the Insolvency Practice Schedule (Bankruptcy) being Schedule 2 to the Bankruptcy Act 1966 (Cth). The complaint that Mr Triantafyllos has against Mr Yeo arises from the following allegations (made in the statement of claim):
(a)Mr Yeo was appointed as the trustee in bankruptcy of Mr Triantafyllos pursuant to orders made by the Federal Circuit Court on 6 February 2018.
(b)Mr Triantafyllos and his former wife, Ms Patsiotis, separated in about July 2014.
(c)On 14 July 2016, Mr Triantafyllos and Ms Patsiotis entered into a Binding Financial Agreement pursuant to s 90C of the Family Law Act 1975 (Cth). The Agreement provided that the property situated at 204 Woodland Street, Strathmore, Victoria, being the matrimonial home, would be transferred to Ms Patsiotis in her sole name. However, Ms Patsiotis would grant to Mr Triantafyllos a residential tenancy for a period of three years from the date of the transfer of the property, in consideration of monthly lease payments of $2,500 per calendar month.
(d)The property was transferred to Ms Patsiotis on 23 January 2017, with the effect that the tenancy would continue until 22 January 2020.
(e)A dispute has arisen between Ms Patsiotis and Mr Triantafyllos with respect to the payment of rent and on 5 July 2018 a notice to vacate was served on Mr Triantafyllos.
(f)On 26 July 2018, Ms Patsiotis commenced a proceeding in the Victorian Civil and Administrative Tribunal (VCAT) seeking possession of the property. The VCAT proceeding has been heard on a number of dates throughout 2018.
(g)In February 2019, there was correspondence between Ms Patsiotis and Mr Yeo as trustee in bankruptcy. The effect of the correspondence was that Mr Yeo asserted that the residential lease over the property in favour of Mr Triantafyllos was property that vested in him pursuant to the Bankruptcy Act 1966 but that he would not be seeking to take part in the VCAT proceedings.
(h)Mr Yeo’s statements were provided to VCAT. VCAT subsequently determined that Mr Triantafyllos no longer had standing to defend the proceeding and that Mr Yeo, as trustee in bankruptcy, did not oppose the relief sought by Ms Patsiotis.
(i)Mr Triantafyllos has commenced this proceeding seeking to review Mr Yeo’s decision not to defend the proceeding in VCAT. Mr Triantafyllos claims that, as a consequence of Mr Yeo’s conduct, the VCAT proceeding has been stayed, Mr Triantafyllos has been precluded from continuing his defence of the proceeding and that he will suffer loss and damage in having a possession order made against him in respect of the property.
The affidavit of Mr Ballantyne showed that, on 3 June 2019, Mr Yeo had commenced another proceeding in the Federal Circuit Court (MLG1734 of 2019). The respondent to that proceeding is the applicant in the present proceeding, Mr Triantafyllos. In the Federal Circuit Court proceeding, Mr Yeo seeks an order pursuant to ss 31(1)(b) and 133(5) of the Bankruptcy Act 1966 granting leave to Mr Yeo to disclaim the lease of the premises at 204 Woodland Street, Strathmore, Victoria. Mr Yeo’s representative in Court submitted that, if the Federal Circuit Court granted leave pursuant to that application, the effect would be that Mr Triantafyllos would have no interest in the property to defend in the VCAT proceeding.
It is therefore apparent that this proceeding and the proceeding in the Federal Circuit Court relate to the same underlying facts and dispute and it is in the interests of justice for both proceedings to be determined together.
In the present case, all of the relevant factors under s 32AB of the Federal Court of Australia Act 1976 (Cth) and Rule 27.12(3) point towards a transfer of this proceeding to the Federal Circuit Court: the parties seek that transfer; no question of general importance arises; proceedings in respect of an associated matter are pending in the Federal Circuit Court; it would be less expensive and more convenient to the parties if both proceedings were determined together and that is also likely to have the proceedings determined more quickly; and the interests of the administration of justice favour the transfer. Given the existence of the other proceeding in the Federal Circuit Court, in my view there is no doubt that the resources of the Federal Circuit Court are sufficient to hear and determine this proceeding.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan. Associate:
Dated: 11 June 2019
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