Velissaris v Fitzgerald

Case [2011] FCAFC 120

FEDERAL COURT OF AUSTRALIA

Velissaris v Fitzgerald [2011] FCAFC 120

Citation: Velissaris v Fitzgerald [2011] FCAFC 120
Appeal from: Velissaris v Fitzgerald [2011] FCA 197
Parties: GEORGE VELISSARIS v LAURENCE FITZGERALD and AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
File number: VID 223 of 2011
Judges: GILMOUR, JAGOT & NICHOLAS JJ
Date of judgment: 9 September 2011
Catchwords: CORPORATIONS – appeal against primary judge’s order dismissing application to terminate winding up of corporation – primary judge’s exercise of discretion not shown to have miscarried – appeal dismissed with costs
Legislation: Corporations Act 2001 (Cth) s 482(1)
Trade Practices Act 1974 (Cth) s 52
Federal Court of Australia Act 1976 (Cth) s 31A(2)
Liquidation of Action Act 1958 s 5    
Cases cited:

Gematech Pty Ltd v Bardi Investments Pty Ltd (2008) NSWSC 196
House v R (1934) 55 CLR 499
Maryvell Investments Pty Ltd (in liq) v Sigma Constructions Pty Ltd (Retail Tenants) [2010] VCAT 1380
Re Maryvell Investments Pty Ltd (in liq) (No 2) [2010] VSC 401
Re Maryvell Investments Pty Ltd (in liq) [2009] VSC 61
Re Maryvell Investments Pty Ltd (in liq) [2010] VSC 278

Re United Medical Protection Ltd (2003) 47 ACSR 705

Sigma Constructions (Vic) Pty Ltd v Marvell Investments Pty Ltd [2004] VSCA 242
Velissaris v Maryvell Invesments Pty Ltd (In Liquidation) & Anor [2007] HCATrans 544
Velissaris v Maryvell Investments (in liq) (No 2) [2008] FCA 511
Vellisaris & Ors v Maryvell Investments Pty Ltd (in liquidation) & Ors [2009] VSC 448
von Risefer v Mainfreight International Pty Ltd (2009) 25 VR 366

Date of hearing: 5 August 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 44
Counsel for the Appellant: The Appellant appeared in person
Counsel for the First Respondent: The First Respondent did not appear
Counsel for the Second Respondent: Mr CM Archibald
Solicitor for the Second Respondent: Australian Securities and Investments Commission

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 223 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GEORGE VELISSARIS
Appellant
AND:

LAURENCE FITZGERALD
First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

JUDGES:

GILMOUR, JAGOT & NICHOLAS JJ

DATE OF ORDER:

9 SEPTEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the second respondent to be taxed if not agreed.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 223 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

GEORGE VELISSARIS
Appellant
AND:

LAURENCE FITZGERALD
First Respondent

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION
Second Respondent

JUDGES:

GILMOUR, JAGOT & NICHOLAS JJ

DATE:

9 SEPTEMBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

THE COURT:

  1. The appellant, Mr George Velissaris, appeals from a discretionary judgment of a judge of this Court entered on 2 March 2011 dismissing his application for an order under s 482(1) of the Corporations Act 2001 (Cth) (the Act) to terminate…

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AGLC
Velissaris v Fitzgerald [2011] FCAFC 120
Case
[2011] FCAFC 120
Decision Date

CaseChat Overview and Summary

This appeal concerns Mr George Velissaris’s application for leave to commence proceedings against Sigma Constructions (Vic) Pty Ltd and others for damages allegedly suffered due to breaches of a licence agreement, and for an order under section 482(1) of the Corporations Act 2001 (Cth) (the Act) to terminate the winding up of Maryvell Investments Pty Ltd (in liquidation). The application was dismissed by the primary judge, and Mr Velissaris now appeals that decision. The central issue before the court was whether the primary judge’s dismissal of Mr Velissaris’s application to terminate the winding up of Maryvell Investments Pty Ltd represented a misapplication of the discretion vested in the court by section 482(1) of the Act. Specifically, the court had to determine whether the primary judge’s decision was unreasonable or otherwise flawed, given the context of the liquidation and the history of litigation between the parties.

The court found that the primary judge had carefully considered the circumstances of the liquidation and the history of the legal proceedings between Mr Velissaris and Sigma Constructions. It was noted that Mr Velissaris had been involved in protracted litigation over the years, with multiple unsuccessful attempts to bring proceedings against Sigma Constructions and others. The court concluded that the primary judge’s exercise of discretion was not shown to have miscarried. The court also highlighted that there were no assets available in the liquidation and that the creditors were owed a significant sum of money. These factors, combined with the history of litigation and the winding up order, supported the primary judge’s decision.

Consequently, the appeal was dismissed with costs. The court ordered that the appellant, Mr George Velissaris, pay the costs of the second respondent to be taxed if not agreed. This ruling effectively concludes the matter, barring any further attempts by Mr Velissaris to bring proceedings against Sigma Constructions without obtaining leave from the court.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the second respondent to be taxed if not agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appellant, Mr George Velissaris, appeals from a discretionary judgment of a judge of this Court entered on 2 March 2011 dismissing his application for an order under s 482(1) of the Corporations Act 2001 (Cth) (the Act) to terminate the winding up of Maryvell Investments Pty Ltd (in liquidation). Background The following background is taken substantially from the related decision of the Victorian Civil and Administrative Tribunal (VCAT) dated 20 August 2010: Maryvell Investments Pty Ltd (in liq) v Sigma Constructions Pty Ltd (Retail Tenants) [2010] VCAT 1380 at [1]-[5]. For many years, George Velissaris was involved with a Greek restaurant on land at 333-335 Sydney Road, Brunswick (the Property) owned by Maryvell. He was the sole director of Maryvell which granted a licence to Sigma Constructions Pty Ltd to gain access, through the land on which the restaurant was situated, to an adjoining property on which it was building a large unit development. Unfortunately, things did not go smoothly and Maryvell commenced proceedings in VCAT in 2003 to have the licence revoked or, as Mr Velissaris describes it, to have Sigma evicted because, as he contended, the heavy equipment used by Sigma damaged the sewerage system and he was forced to close the restaurant. A second proceeding was commenced in 2003 in which Maryvell claimed significant damages. Sigma successfully appealed against VCAT’s decision to grant Maryvell a permanent injunction restraining Sigma, its servants and agents from entering upon any part of Maryvell’s land. In December 2004, the Victorian Court of Appeal having determined that VCAT had jurisdiction, the matter was otherwise remitted to VCAT to consider Maryvell’s outstanding claims. There followed a number of interlocutory hearings when various directions were made for the further conduct of both proceedings. Maryvell was placed into liquidation and Laurence Fitzgerald, the first respondent, was appointed liquidator on 19 June 2006. The property was sold at auction by the liquidator in 2008. Since then, Mr Velissaris has commenced, or sought leave to commence, a number of proceedings in the Supreme Court of Victoria and the Federal Court of Australia and has sought leave to appeal to the High Court of Australia on at least two occasions. Orders have been made in both the Supreme Court of Victoria and the Federal Court of Australia requiring Mr Velissaris to obtain leave before any similar proceedings can be commenced. We will return to these in more detail below. The liquidator has finalised the liquidation, and on 8 November 2010 submitted to ASIC a deregistration request in respect of Maryvell. The final accounts of the liquidator disclose that there are no assets and creditors totalling $4.1 million.The application below The application below sought the following orders.1. LEAVE OF The COURT To BE Granted To the Applicant George Velissaris To BE Allowed to Start Legal Proceedings Against Sigma Constructions (Vic) Pty Ltd & Stelios And Margaret Constantopoulos & Ors, For The Loss & Damages Suffered DUE To Their Repeated Breaches Of The LICENCE Agreement Between Maryvell Inv. P/L And Sigma Constructions (Vic) P/L Dated In July 2002, (Maryvell Inv. P/L Was The Landlord) And Pursuant To The ORDER Of Her Honour Justice Gordon Of 15/ April /2008.2. An Order Of The Court TO TERMINATE The Liquidation Of Maryvell Investments P/L, Forthwith, Under Section 482 1A Of The Corporations Act.3. The COURT To Direct ASIC, To STOP The Deregistration Request Form 578 Of Laurence A Fitzgerald Dated The 8/11/2010, AND TO ORDER ASIC, To Forthwith REINSTATE The EX Trustee Co. Maryvell Investments Pty Ltd, To The Full Status And As IT WAS Before The Liquidation Order Of 19th June 2006, And That Mr GEORGE VELISSARIS, TO BE The Director / Secretary & Shareholder Of This Company.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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