Vasiliou v Tasiopoulos Lambros & Co

[2004] FCA 1467

FEDERAL COURT OF AUSTRALIA

Vasiliou v Tasiopoulos Lambros & Co [2004] FCA 1467

ANDREW VASILIOU v TASIOPOULOS LAMBROS & CO

VID1348 OF 2004

SUNDBERG J
11 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID1348 OF 2004

BETWEEN:	ANDREW VASILIOU APPLICANT
AND:	TASIOPOULOS LAMBROS & CO RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	11 NOVEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The motion notice of which was filed on 4 November 2004 be dismissed.

2.The applicant pay the respondent’s costs of the motion.

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	VID1348 OF 2004

BETWEEN:	ANDREW VASILIOU APPLICANT
AND:	TASIOPOULOS LAMBROS & CO RESPONDENT

JUDGE:	SUNDBERG J
DATE:	11 NOVEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant had a dispute with his builder. The respondents acted as solicitors for the applicant in that dispute. The respondent sued the applicant to recover its fees for acting for him, and on 25 January 2000 it obtained judgment by default against him in the Magistrates Court. The judgment was for $23,220.82.

2. On 8 March 2000 he applied to the Magistrates Court to set aside the judgment. He did not attend the hearing and the application was refused. On 26 July 2004 a further application was made to set aside the judgment. The applicant attended the hearing. The application was unsuccessful. The applicant has unsuccessfully sought leave to appeal to the Supreme Court.

3. The respondent served a Bankruptcy Notice on the applicant. On 15 June 2004 the Federal Magistrates Court dismissed his application to set aside that Notice. The applicant says he has appealed against that decision.

4. On 14 September 2004 Registrar Wood made a sequestration order against the applicant’s estate.

5. The applicant applied to the Federal Magistrate’s Court for a review of the Registrar’s decision. The applicant sought to challenge the respondent’s debt and asked the Court to go behind the default judgment. In dismissing the application the Magistrate said:

   “Apart from making assertions that the Respondent has failed in its professional obligations, has colluded with the supporting creditor, has ‘inflicted upon me serious bad things’, and has charged for work not done, or charged excessively, the Applicant has provided no material that would raise a concern about the "truth and reality" of the judgment debt. His attempts to set aside the default judgment and the Bankruptcy Notice have failed to persuade competent tribunals that such should be done. In light of that, and the lack of any other evidence or material that the judgment debt is open to real challenge, I cannot be satisfied that I should exercise my discretion other than to accept the truth and reality of the judgment debt. Accordingly, I am not persuaded that I should go behind the judgment debt.”

   The Magistrate was satisfied that a sequestration order should be made, and affirmed the order of the Registrar.

6. What I have said thus far is not a complete account of the various proceedings taken by the applicant, but it sufficiently sets the scene for the purpose of the present application.

7. On 3 November 2004 the applicant filed a Notice of Appeal. In an affidavit accompanying the Notice he said:

   “That the orders handed down by O’Dwyer FM is unfair and outside his jurisdiction in dealing directly with a dispute that was existing between parties.

   Magistrate O’Dwyer FM in arriving to his decision has not took into consideration the [summary] of argument of the truth or the reality of debt.”

8. On 4 November the applicant filed a Notice of Motion by which he sought the following relief:

   “1.      To place a stay to the bankruptcy.

   2.To remove caveats lodged on several titles by the trustee until the outcome of this proceeding.

   3.That all actions done by the trustee in bankruptcy be reversed including demands of payment of rents from tenants of property belonging to the Vasiliou Family Trust.”

9. An affidavit sworn by the applicant in support of the motion reads:

   “1.That the present actions by the trustee in bankruptcy are causing extreme hardship and danger to run existing borrowing and mortgages owned by a family trust.

   3.The present situation is very chaotic and out of control and is creating my heart problems and this situation can not continue more than a few days. 2‑3 days.”

   I will treat the notice as an application for a stay pursuant to s 52(3) of the Bankruptcy Act 1966.

10. There is no evidence as to the “actions” of the trustee in bankruptcy, the nature of the hardship asserted, or the borrowings and mortgages. There is no material to support the granting of a stay of the bankruptcy. There is no information about the caveats lodged by the trustee, or as to the identity of the registered proprietor of the land. There is nothing to support the claim that the caveats should be removed until the outcome of the appeal. There is no material to support the claim that the trustee’s actions, whatever they are, should be reversed.

11. The applicant has not made out a case for the relief sought in the motion, which is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:            11 November 2004

The applicant appeared in person
Counsel for the Respondent:		M Galvin
Solicitor for the Respondent:		Tasiopoulos Lambros & Co
Solicitor for B J Marchisi, trustee of the applicant’s bankrupt estate		M Lhuede (Piper Alderman)
Date of Hearing:		11 November 2004
Date of Judgment:		11 November 2004