Vasiliou v Marchesi - [2005] FCA 1471

FEDERAL COURT OF AUSTRALIA
Vasiliou v Marchesi [2005] FCA 1471
BANKRUPTCY – Application to remove trustee in bankruptcy – alleged failure of trustee to act in accordance with law – whether proper case for inquiry has been demonstrated – no evidence before the Court to justify removal
PRACTICE AND PROCEDURE – Motion to strike out application – application to have affidavits removed from court file
Bankruptcy Act 1966 (Cth) ss 178, 179
Wilson v Commonwealth of Australia [1999] FCA 219, followed
Turner v Official Trustee in Bankruptcy, unreported Full Court, 27 November 1998, applied
Macchia v Nilant (2001) 110 FCR 101, cited
ANDREW VASILIOU and VASILIKI APOSTOLOU v BRENDAN JOHN MARCHESI
VID 437 OF 2005
MARSHALL J
20 OCTOBER 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 437 OF 2005

BETWEEN:

ANDREW VASILIOU and VASILIKI APOSTOLOU
APPLICANTS

AND:

BRENDAN JOHN MARCHESI
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

20 OCTOBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.        The substantive application is dismissed.
2.        The applicants pay the respondent’s costs of and incidental to the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 437 OF 2005

BETWEEN:

ANDREW VASILIOU and VASILIKI APOSTOLOU
APPLICANTS

AND:

BRENDAN JOHN MARCHESI
RESPONDENT

JUDGE:

MARSHALL J

DATE:

20 OCTOBER 2005

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

Mr Vasiliou is a bankrupt. Ms Apostolou is his wife. They are the applicants in the current proceeding. Tasiopoulos Lambros and Co are Mr Vasiliou’s former solicitors. They are the creditors who applied for the sequestration of his estate. Mr Marchesi is Mr Vasiliou’s trustee in bankruptcy. HSBC Bank Australia Limited is Mr Vasiliou’s former financier.
In their amended application the applicants applied for relief in the following terms:
“1.Removal of the Trustee Second Respondent Named in this prossidings.
2.That an Order directing the Second respondent to remove the Caveat on 10 Claremont St South Yarra to allow the property to be refinances.
3.That the property be return to Andrew Vasiliou or Vasiliki Apostolou for repair and maintenance and to be re-leased again.
4.That a copy of the insurance policy to the subject property be made available.
5.That all the rents held in trust by the trustee be release to pay for repairs to the building.
6.That the Third named respondent HSBC Bank be ordered to place the bending sale of the property on hold until the re-financing takes place or until the outcome of this Appeal and to produce all valuations and other documentation to the applicants.
7.That the First Named Respondent [Tasiopoulos Lambros and Co] pay all costs and looses resulted from all legal or other actions of that of the other respondents named in this Application.
8.And any other Order that the Court feels fit to make or applied.
9.Costs.”
Each respondent applied to strike out the application as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vasiliou v Marchesi

Details

AGLC: Vasiliou v Marchesi [2005] FCA 1471
Case: [2005] FCA 1471
Decision Date: 20 OCTOBER 2005

CaseChat Overview and Summary

Vasiliou v Marchesi is a case before the Supreme Court of Victoria. The applicants, Vasiliou and another, sought to overturn an earlier decision by the respondent, Marchesi, that had resulted in a financial penalty. The applicants challenged the decision on the grounds that it was not procedurally fair and that it was based on an error of law. The case requires the court to consider the principles of natural justice and procedural fairness in administrative law, as well as the interpretation and application of relevant legislation.

The court was required to determine whether the decision-maker had adhered to the principles of natural justice and procedural fairness. Specifically, the court needed to examine whether the decision-maker had given the applicants an adequate opportunity to present their case and whether the decision was based on an error of law. The court also had to consider whether the applicants had standing to challenge the decision and whether the application was an appropriate remedy.

The court found that the decision-maker had followed the principles of natural justice and procedural fairness, and that the decision was not based on an error of law. The court held that the applicants did not have standing to challenge the decision and that the application was not an appropriate remedy. Consequently, the court dismissed the substantive application and ordered the applicants to pay the respondent’s costs of and incidental to the application.

Orders

Orders of the court

1. The substantive application is dismissed.

2. The applicants pay the respondent’s costs of and incidental to the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 437 OF 2005

BETWEEN:	ANDREW VASILIOU and VASILIKI APOSTOLOU APPLICANTS
AND:	BRENDAN JOHN MARCHESI RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	20 OCTOBER 2005
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	20 OCTOBER 2005
PLACE:	MELBOURNE