Tsekouras v Evangelinidis

[2000] FCA 395

FEDERAL COURT OF AUSTRALIA

Tsekouras v Evangelinidis
[2000] FCA 395

CON TSEKOURAS v VIVECA EVANGELINIDIS
N 8266 OF 1999

GYLES J
SYDNEY
8 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 8266 OF 1999

BETWEEN:	CON TSEKOURAS APPLICANT
AND:	VIVECA EVANGELINIDIS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	8 FEBRUARY 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed

2.The applicant to pay the respondent’s costs

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	N 8266 OF 1999

BETWEEN:	CON TSEKOURAS APPLICANT
AND:	VIVECA EVANGELINIDIS RESPONDENT

JUDGE:	GYLES J
DATE:	8 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application made in terms to set aside a bankruptcy notice which came on before the Registrar.  The application was refused and this is now an application before me for review and I must myself look at the matter de novo.  I have read the evidence filed in the matter.  There has been some difficulty for the applicant in presenting his case.  He speaks English but not well.  He has had the advantage of an interpreter who has endeavoured to interpret as best he can under the circumstances and the transcript will reveal what has passed on this occasion.  He has been unable to assist me with any cogent submissions as to the legal basis for his application.

2. Ms Nash, for the respondent, has put oral submissions and has referred me to written submissions which were put to the Registrar and she has again repeated the substance of those to me.  Those submissions have been placed with the papers.  The substance of the position of the applicant, as best as I can glean it from the evidence, is that the judgment debt upon which the bankruptcy notice is founded is apparently a claim for legal costs by the respondent's solicitor against the applicant who was her client.  The judgment in question is dated 14 October 1999 in the sum of $73,251.84.

3. So far as the admissible evidence reveals, there has been no application to set aside that judgment.  Mr Tsekouras had brought proceedings against the respondent for negligence which were dealt with in the District Court and rejected.  On 11 October last year the Court of Appeal made orders, dismissing an appeal from that judgment as incompetent because of the absence of leave.  The court then, however, looked at the question of leave and refused leave on the basis that there was no real prospect of success in the foreshadowed appeal and made an order for the payment of costs.  The applicant then filed a special leave application in the High Court against that ruling of the Court of Appeal.  It seems to me that those negligence proceedings are essentially irrelevant to the matter before me. 

4. The other basis which is put forward is that the applicant claims that he has paid to or at the request of the respondent, a number of amounts of money which are set out in his affidavit and which he says are reflected by receipts which have been tendered and marked for identification.  In my view, those facts are irrelevant as they predate the judgment upon which the bankruptcy notice is founded.

5. It seems to me that in the absence of an application to set aside that judgement (which would then have to be scrutinised if there were one) there is no proper basis for any of the applications which might be made in relation to this bankruptcy notice.  I need not deal, I think, with all of the arguments which Ms Nash directed to me because the analysis I have made satisfies me that, no matter how leniently or sympathetically one views the situation of the applicant, he simply has no foundation in the Act for the complaint which he now makes.  Of course when and if any sequestration proceedings come on for hearing, then there may be other issues which can be determined or other steps taken.  I need not say anything more about that at the moment.  I therefore dismiss the application.

6. I should add to my judgment before dealing with a question of costs, that the applicant complains about the absence of the solicitor concerned and a costs assessor, he wishing, presumably, to raise some issue concerning the amount of the judgment.  It seems to me that it is not in his power to raise those issues at this stage.  So far as the matter before me is concerned there have been no formalities attended to in that regard.  If there had been there would still be a real issue as to his ability to lead any such evidence and even if he were able to lead any such evidence it seems to me most unlikely that it would have any bearing upon the matter as it now stands.  As I have said, I dismiss the application and I order that the applicant pay the costs of the respondent.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             

Solicitor for the Applicant:	In person
Solicitor for the Respondent:	Ms Sally Nash
Date of Hearing:	8 February 2000
Date of Judgment:	8 February 2000