Vince (Trustee) v Sopikiotis

[2013] FCA 967

FEDERAL COURT OF AUSTRALIA

Vince (Trustee) v Sopikiotis [2013] FCA 967

Citation:		Vince (Trustee) v Sopikiotis [2013] FCA 967
Parties:		PETER ROBERT VINCE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIA SOPIKIOTIS v MARIA SOPIKIOTIS
File number(s):		VID 145 of 2012 VID 595 of 2013
Judge:		JESSUP J
Date of judgment:		5 September 2013
Date of hearing:	5 September 2013
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr T Connard
Solicitor for the Applicant:	Maddocks
Respondent:	The respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 145 of 2012 VID 595 of 2013

BETWEEN:	PETER ROBERT VINCE AS TRUSTEE OF THE BANKRUPT ESTATE OF MARIA SOPIKIOTIS Applicant
AND:	MARIA SOPIKIOTIS Respondent

JUDGE:	JESSUP J
DATE:	5 SEPTEMBER 2013
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The respondent in these proceedings, the first of which has been on foot for some time in this court, has caused to be issued an Interlocutory Application returnable at 2.15 pm on 10 September 2013.  In that application, she will seek an injunction to restrain the execution of a warrant of possession which relates to her residential property in Camberwell, that warrant having been issued by the court on 30 May 2013 pursuant to an order previously made.  The matter has been informally listed for a telephone hearing this evening because the respondent discovered this afternoon that it would be tomorrow that the sheriff proposed to execute the warrant of possession.  The applicant, who is the trustee of the bankrupt estate of the respondent, has attended by telephone and assisted me to the extent that the instructions which he has given to his legal representatives have permitted.

2. It is accepted by the parties that the respondent was served with a notice to vacate the subject property on or about 14 August 2013, such notice requiring her to vacate before 30 August 2013.  The Interlocutory Application returnable on 10 September was issued on 2 September 2013.

3. I am conscious of the fact that the matter has been dealt with tonight in circumstances which would normally be regarded as unsatisfactory because it is not the return time or date for the Interlocutory Application as such.  However, it seems that the relief which was sought in that application must be given to the respondent immediately if it is to be given at all.  In her submissions in support of that relief, the respondent has taken me over a very substantial procedural history which relates to her bankruptcy and to challenges made to it in this court.

4. According to the Interlocutory Application, the injunction is sought pending the outcome an annulment application, which I have been told was made by the respondent in the Federal Circuit Court, and has been listed for a date in October.  There is, therefore, an immediate problem that the protective interlocutory jurisdiction of the court is sought to be invoked in a proceeding different from any that is currently in the court.  Because of the correlative jurisdiction of the Federal Court and the Federal Circuit Court in matters of bankruptcy, I am prepared to put that consideration to one side for a moment, but I would expect it to be dealt with when the Interlocutory Application comes on for hearing on 10 September 2013.

5. The circumstance that has most exercised my mind this evening, particularly given the unusual and, in some respects, unsatisfactory procedural setting in which this application is being dealt with, is that the applicant has been on notice since 14 August 2013 that she was required to vacate her property before 30 August 2013.  The applicant has told me over the telephone this evening that she engaged in conversations with the sheriff and informed him that she proposed to seek an injunction and that she had commenced an annulment proceeding.  Nonetheless, there has been a sufficiently long history to the whole matter to have rendered, in my view, the respondent’s failure to put the applicant on notice as fatal to her claim for relief.  If the respondent was going to seek to resist the execution of the warrant of possession, she ought to have taken steps in that regard very promptly after she received the notice to vacate dated 14 August 2013.

6. I am not prepared to act upon the incomplete and unsatisfactory materials which are before the court this evening in circumstances where the respondent has allowed time to pass before she made the present application.  For those, largely pragmatic but nonetheless reasonable, reasons, which I hope will have a fairly obvious basis in commonsense and justice, I propose to take no action this evening by way of injunction restraining the sheriff from executing the warrant of possession.  The Interlocutory Application will remain listed at 2.15 pm on 10 September 2013 and although, on one view of things, it might then be a moot cause, that hearing, at least, will give the court the opportunity to dispose of the matter once and for all.

7. Insofar as the respondent is seeking injunctive relief this evening, that application is refused.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated:       5 September 2013