Tsecouras v Price

[2008] FCA 106

FEDERAL COURT OF AUSTRALIA

Tsecouras v Price [2008] FCA 106

PETER TSECOURAS v ANNE PRICE
NSD 2076 OF 2007

COWDROY J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2076 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER TSECOURAS Appellant
AND:	ANNE PRICE Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to O 20 r 5 of the Federal Court Rules the Amended Notice of Appeal and the appeal be dismissed.

2.The Appellant pay the Respondent’s costs of the motion and of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2076 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	PETER TSECOURAS Appellant
AND:	ANNE PRICE Respondent

JUDGE:	COWDROY J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respondent’s notice of motion before this Court seeks an order that the appeal be struck out.

2. By amended notice of appeal filed on 20 December 2007 the appellant (‘Mr Tsecouras’) appeals from the decision of Federal Magistrate Raphael delivered on 2 October 2007 in the Federal Magistrates Court of Australia. By such decision Raphael FM dismissed an application made by Mr Tsecouras to set aside the bankruptcy notice pursuant to s 41(6A) of the Bankruptcy Act 1966 which relevantly states:

   (6A)Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:

   (a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or

   (b) an application has been made to the Court to set aside the bankruptcy notice;

   the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.

3. Mr Tsecouras also appeals from the orders made by me in this Court on 30 November 2007, although the only orders made on that date were as follows:

   1.The appellant file and serve an amended notice of appeal by 4 pm on 13 December 2007.

   2.The proceedings be adjourned until 9.30 am on Tuesday 18 December 2007.

   3.The respondent be at liberty to file a notice of motion to strike out the proceedings on Monday 17 December 2007 to be made returnable on Tuesday 18 December 2007.

   4.Costs be reserved.

   As these orders were not addressed in either Mr Tsecouras’ written or oral submissions, the purported appeal from such orders will be ignored. 

4. By notice of motion filed on 17 December 2007 the respondent (‘Ms Price’) seeks orders that Mr Tsecouras’ appeal be dismissed pursuant to O 20 r 5 of the Federal Court Rules as constituting an abuse of process or alternatively that summary judgment be entered in her favour pursuant to s 31A of the Federal Court of Australia Act 1976. Such motion is the…