Tsekouras v Evangelinidis

[2009] NSWSC 1233

CITATION:	Tsekouras v Evangelinidis [2009] NSWSC 1233
HEARING DATE(S):	4 November 2009
JUDGMENT DATE :	4 November 2009
JURISDICTION:	Equity
JUDGMENT OF:	White J
EX TEMPORE JUDGMENT DATE:	4 November 2009
DECISION:	1. Order that the proceedings be dismissed; 2. Order that the plaintiff pay the defendants' costs on the indemnity basis.
CATCHWORDS:	PROCEDURE - vexatious litigant - plaintiff instituted proceedings against defendants despite order having been made restraining the plaintiff from instituting proceedings against defendants in any court without leave of the court - no leave given to institute proceedings - proceedings dismissed - indemnity costs awarded
LEGISLATION CITED:	Supreme Court Act 1970 (NSW) Bankruptcy Act 1966 (Cth)
CATEGORY:	Principal judgment
PARTIES:	Plaintiff: Con Tsekouras 1st Defendant: Vivieca Evangelinidis 2nd Defendant: Sally Nash & Co 3rd Defendant: Peter Olsen
FILE NUMBER(S):	SC 5039/09
COUNSEL:	Plaintiff: In person 3rd Defendant: S Mullette
SOLICITORS:	Plaintiff: n/a 3rd Defendant: Bartier Perry

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Wednesday, 4 November 2009

5039/09 Con Tsekouras v Vivieca Evangelinidis & 2 Ors

JUDGMENT

1 HIS HONOUR: These proceedings were commenced on 23 October 2009 by the plaintiff filing a statement of claim. The plaintiff named as defendants Ms Vivieca Evangelinidis as the first defendant; Sally Nash & Co as second defendant; and Peter Olsen as third defendant.

2 The statement of claim describes the type of claim as being an appeal against “the whole of judgment of Justice Rares J at the Federal Court of Australia, New South Wales District Registry on 20 May 2009 on Matter No. NSD353 of 2009”.

3 On 5 March 2003 Palmer J made an order pursuant to s 84(2) of the Supreme Court Act 1970 (NSW) that, without leave from the Supreme Court of New South Wales, the plaintiff, Mr Con Tsekouras, be restrained from instituting any legal proceedings against Vivieca Evangelinidis in any court.

4 On 5 June 2007 Bryson AJ made an order pursuant to s 84(2) of the Supreme Court Act that, without leave of the Supreme Court of New South Wales, Mr Tsekouras be restrained from instituting any legal proceedings against Peter Olsen in any court.

5 These proceedings were commenced without leave having been obtained. Mr Tsekouras justifies the institution of proceedings on the basis that, according to him, he was told by somebody in the Registry, whom he says was a Registrar, that he should file his papers. The papers filed do not seek leave for the institution of proceedings.

6 The statement of claim was accompanied by a notice of motion which sought the following orders:

“ 1. Third Party Claim
2. Recognition of payments made by the Plaintiff as declared in his Affidavit filed on July 4 ^th 2000 totalling an amount of $247,705.204 for which he had copies of bank cheques drawn on Commonwealth Bank of Australia and a letter from them acknowledging this fact.
3. Peter Olsen admitted in his Affidavit of 4 January 2005 that certain moneys had been paid by the plaintiff although the plaintiff seeks that Peter Olsen be made accountable for not acknowledging these payments had been made much earlier.
4. Court’s recognition that Peter Olsen in his capacity of Trustee would not acknowledge the Plaintiff’s claim that he was owed money and had assets and should never have been declared bankrupt which was later annulled s 153A Annulment
5. Compensation in an amount of $750,000 for the loss of moneys by the plaintiff due to Damages in being Declared Bankrupt and later annulled as well as the loss of superannuation payments paid by the Plaintiff for many years at the rate of $15.00 per week. ”

7 In the statement of claim the relief claimed is described as follows:

“ 1. Third Party Claim.
2. Restitution for monies charged twice, i.e. costs paid direct in an amount of $166,469.54 as acknowledged by Mr Peter Olsen and shown on document and presented by him, although the plaintiff claims he actually paid out $244,895.52 (see documents attached)
3. The plaintiff also claims $750,000 compensation being a Third Party claim for reimbursement of out of pocket expenses, plus superannuation and interest on the amount of $244,895.52 being included as stated above. ”

8 Under the heading “Pleadings and Particulars” the plaintiff alleges:

“ 1. Peter Olsen in his capacity of Trustee would not acknowledge my claim and had me declared Bankrupt on 14 June 2000, later it was annulled pursuant to Section 153A of the Bankruptcy Act as it was discovered no money was owed.
2. Despite the Bankruptcy action being withdrawn as the money had been paid by me and no monies were owing, the Defendants are responsible for not acknowledging the Plaintiff had paid moneys in the form of bank cheques for costs in his court matter and should not have been charged a second time for these costs.
3. The plaintiff is seeking a Third Party claim for loss of superannuation paid at $15 per week over many years and outlaying costs of $244,895.52 and being made Bankrupt by the Defendants despite showing them the evidence of his payments as requested by Mr Peter Olsen. Later the Bankruptcy was annulled without any remuneration or apology – it should never have happened in the first instance. ”

9 The notice of motion is supported by an affidavit of the plaintiff also filed 23 October 2009 which reads as follows:

“ I say on oath:
1. I am the first plaintiff in these proceedings.
2. I am appealing against the whole of judgment of Justice Rares J at the Federal Court of Australia New South Wales District Registry on 20 May 2009 on Matter No.NSD353 of 2009.
Background as to why I believe this matter is not resolved and should be heard again by the Supreme Court of New South Wales.
3. I refer to the Affidavit of Peter Olsen lodged with the Supreme Court on 5 ^th January 2005 in Matter No.20436 of 2004 (copy attached) in which he stated that I was made bankrupt by him in his capacity as an employee of the Insolvency and Trustee Service of Australia.
4. I state that Mr Olsen requested information of me regarding payments I had made direct personally by Commonwealth bank cheques to those listed in my Affidavit of 4 ^th July 2000, Matter No.651/2000 in The Federal Court of Australia, New South Wales District Registry totalling $247,705.24 and after receiving same chose to ignore it.
5. Mr Olsen later acknowledged as per his document ‘Separate Estate of Con Tsekouras’ with end date of 10 Dec 2000 that I had made certain payments. But Bankruptcy proceedings were filed on 14 June 2000.
6. In August 2003 the Bankruptcy was annulled as per copy of Extract from National Personal Insolvency papers attached.
7. I say that I should never have been made bankrupt by Mr Peter Olsen as an employee of the Official Receivers Office. I had assets and proof of payments made as submitted to him and this information was ignored.
8. I state that there was no debt owing to Viveca Evangelinidis or Sally Nash and Co by myself and the proceedings therefore should not have proceeded.
9. I am seeking justice as per my Statement of Claim sworn on 28 September 2009 and attached hereto. ”

10 The notice of motion was made returnable this morning before the Registrar and proceedings were referred by the Registrar to me as Duty Judge.

11 I have dealt with the application as if it were an application for the grant of leave nunc pro tunc to Mr Tsekouras to institute these proceedings against Ms Evangelinidis and Mr Olsen.

12 No information has been put before me by the plaintiff as to the circumstances leading to the orders under s 84(2) of the Supreme Court Act.

13 The statement of claim purports to be an appeal from a judgment of Justice Rares of the Federal Court. No appeal lies to this court from such a judgment.

14 No claim is pleaded against the second defendant. Nothing appears from the plaintiff thus far as to what cause of action Mr Tsekouras might allege against that firm of solicitors.

15 There is nothing in the pleading, nor in the affidavit accompanying the notice of motion, that demonstrates what cause of action the plaintiff might have against either the first defendant or the third defendant. His claim appears to be that, although he was made bankrupt, he had sufficient assets to meet the claims of creditors.

16 An affidavit sworn by the third defendant in proceedings in the Common Law Division of this court is annexed to the statement of claim. It discloses that the plaintiff was made bankrupt on 14 June 2000 on the petition of Ms Evangelinidis and that the bankruptcy was annulled pursuant to s 154A of the Bankruptcy Act 1966 (Cth) following payment in full of all provable debts.

17 In his affidavit in support of the notice of motion Mr Tsekouras says that he should never have been made bankrupt by Mr Olsen as an employee of the Official Receiver’s Office. There is nothing to suggest that he was made bankrupt by Mr Olsen.

18 The plaintiff also says in that affidavit he had assets in proof of payments, which information was ignored and there were no debts owed to Sally Nash and Co and the proceedings should not have been proceeded with.

19 Evidently no appeal was made in the bankruptcy against the acceptance of the proofs of debt.

20 I am not satisfied on the materials filed that leave ought to be given to the plaintiff to institute these proceedings against the first or third defendants. Therefore I am not prepared to make an order nunc pro tunc.

21 Even if this were a case for leave, I am far from saying that it would be appropriate to entertain an application for leave to institute proceedings nunc pro tunc.

22 The purpose of making orders under s 84(2) of the Supreme Court Act is that prospective defendants not be vexed by the institution of proceedings. Leave is required before proceedings are instituted. A judge needs to be satisfied it is appropriate the proceedings be instituted before leave will be given. There was no proper basis for Mr Tsekouras to have instituted the proceedings and I do not accept that he could properly rely upon what he asserts was told to him by a person in the court registry as justifying the commencement of the proceedings without leave. For a person subject to orders under s 84 to institute proceedings in breach of those orders is a serious matter and warrants an order for indemnity costs.

23 For these reasons I order that the proceedings be dismissed and that the plaintiff pay the defendants’ costs on the indemnity basis.

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