Velissaris v Maryvell Investments Pty Ltd (in liq) (No 1)

[2008] FCA 492

FEDERAL COURT OF AUSTRALIA

Velissaris v Maryvell Investments Pty Ltd (in liq) (No 1)
[2008] FCA 492

GEORGE CON VELISSARIS v MARYVELL INVESTMENTS PTY LTD (IN LIQ) ACN 080 327 073 and LAURENCE A FITZGERALD (AS LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD)

VID 1164 OF 2007

GORDON J
15 APRIL 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1164 OF 2007

BETWEEN:

GEORGE CON VELISSARIS
Plaintiff

AND:

MARYVELL INVESTMENTS PTY LTD (IN LIQ) ACN 080 327 073
First Defendant

LAURENCE A FITZGERALD (AS LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD)
Second Defendant

JUDGE:	GORDON J
DATE OF ORDER:	15 APRIL 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application by the Plaintiff seeking an adjournment of the Defendant’s Notice of Motion filed 4 April 2008 is dismissed.

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 1164 OF 2007

BETWEEN:

GEORGE CON VELISSARIS
Plaintiff

AND:

MARYVELL INVESTMENTS PTY LTD (IN LIQ) ACN 080 327 073
First Defendant

LAURENCE A FITZGERALD (AS LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD)
Second Defendant

JUDGE:	GORDON J
DATE:	15 APRIL 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. I have before me an oral application by the Plaintiff, George Con Velissaris, for an adjournment of the application made by the Defendants, Maryvell Investments Pty Ltd (in liquidation) (“Maryvell”) and Laurence A. Fitzgerald, the liquidator of Maryvell (“Mr Fitzgerald”).  Mr Velissaris seeks an order adjourning the applications by the Defendants; an adjournment of the application for the proceeding to be dismissed pursuant to O 20 r 5 of the Federal Court Rules on the basis that the proceeding is vexatious, an abuse of process or otherwise frivolous.  Second, an adjournment of the application by the liquidator pursuant to O 21 r 2 that Mr Velissaris not, without the leave of the court, institute any proceedings against the Defendants and that any proceeding instituted by Mr Velissaris against the Defendants not be continued by him without the leave of the court. 

2. Mr Velissaris made his application for adjournment on three grounds:

   1.what he described as “very late service”;

   2.he required further time to obtain or retain the services of a solicitor and/or a barrister; and

   3.his medical condition. 

   I will deal with each of those grounds in turn.

   Time of Service

3. Mr Richard Midgley, the solicitor for the Defendants, deposed to service of the applications I have referred to above by facsimile transmission on 4 April 2008.  On any view that is sufficient time for the service.  Mr Velissaris contends that he did not receive those documents and that the first time he received service was on 9 April 2008.  In my view, service was effected on 4 April 2008.  However, even if service was not effected until 9 April 2008, I consider that there was sufficient time for Mr Velissaris to consider the matters raised in that application and deal with them. 

   Request for further time to retain the services of a solicitor and/or barrister

4. To understand the merits of this ground, it is necessary to set out in some detail the history of this proceeding.  It was commenced on 11 December 2007 by Mr Velissaris filing the proceeding against the Defendants.  At that time, the proceeding was supported by an affidavit sworn by Mr Velissaris, also dated 11 December 2007.  This proceeding arises from the sale of a property situated at 333-335 Sydney Road, Brunswick (“the property”).  On 14 November 2007 Mr Fitzgerald sold the property as an asset of Maryvell by auction, with settlement to be effected within 30 days.  The sale price was $1.6 million (“the First Contract of Sale”).

5. Mr Velissaris made serious allegations about the conduct of that sale.  Those issues may be put to one side for the moment.  On 12 December 2007, Gray J heard an application by Mr Velissaris for an injunction to restrain the liquidator from effecting any settlement of the First Contract of Sale and appeared for himself.  Gray J refused to grant the injunction and fixed the matter for directions in the next corporations list which was to be held in February 2008.  On 12 February 2008, Goldberg J made orders requiring Mr Velissaris to file and serve a statement of claim by 4 March 2008.  Consequential orders were also made but may be put to one side as they are not relevant here. 

6. Mr Velissaris did not appear at that directions hearing, but subsequently applied for and was given no less than two extensions of time in which to file and serve the statement of claim that had been ordered by Goldberg J.  He failed to comply.  The matter now comes before me as a result of the applications by the Defendants I referred to earlier.  It is now some four months since this proceeding was initially commenced by Mr Velissaris. 

7. On any view, and regardless of the attempts made by Mr Velissaris deposed by him in his affidavit, there has been more than sufficient time for him to obtain or seek to obtain and retain the services of a solicitor and/or barrister.  Any further extension of time is unlikely in my view to resolve this issue.

   Mr Velissaris’ medical condition

8. Mr Velissaris contends, and has provided evidence of, serious medical conditions.  There are two answers to Mr Velissaris’ reliance on these conditions.  First, there is nothing to suggest before me, whether by way of medical opinion or otherwise, that Mr Velissaris is unable to appear for himself today as he has done in this court, most recently in December last year.  Secondly, and no less importantly, it is not suggested that the conditions he relies upon are likely to improve in the very near future so that a grant of an adjournment would lead to the expeditious resolution of these proceedings. 

   Conclusion

9. Having regard to the nature of the allegations raised, and in particular that they concern the conduct of a company in liquidation, where other third party interests – namely, unsecured creditors – continue to be affected, it is inappropriate in these circumstances for there to be the grant of the adjournment sought by Mr Velissaris.  The application is dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate:
Dated:       15 April 2008

Counsel for the Plaintiff:	Self-represented
Counsel for the Defendants:	Mr D T Forbes
Solicitor for the Defendants:	Moray & Agnew Solicitors

Date of Hearing:	15 April 2008
Date of Judgment:	15 April 2008