Voukidis v Anastasopoulos

Case [2019] FCCA 3397


FEDERAL CIRCUIT COURT OF AUSTRALIA

VOUKIDIS v ANASTASOPOULOS & ANOR [2019] FCCA 3397

Catchwords:
BANKRUPTCY – Composition with creditors (“Composition”) – application to set aside Composition – whether Composition should be set aside as unreasonable, not calculated to benefit the creditors generally or for any other reason – relevant considerations – who is a creditor with standing to apply for the setting aside of a Composition.

BANKRUPTCY – Composition with creditors (“Composition”) – when a Composition is “in force” – when a Composition is discharged.

WORDS & PHRASES – “creditor” – “false” – “in force”.

Legislation:

Bankruptcy Act 1966, ss.73, 74, 76B, 109, 115, 222, 224, 230, 232, 254
Limitation Act 1969 (NSW), s.43
Bankruptcy Regulations1996, reg.4.18
Federal Court Rules 2011, r.16.54

Cases cited:

Ambridge Investments Pty Ltd (in liq) (recvr app’td) v Baker & Ors [2010] VSC 59

Khera v National Australia Bank Limited (1996) 71 FCR 133

Moss v Gunns Finance Pty Ltd (Receivers & Managers Appointed) (In liquidation) (2018) 16 ABC(NS) 325
Augustyn v Putnin (1988) 83 ALR 514
Re Beames; Ex parte Beneficial Finance Corp Ltd (1985) 7 FCR 216
Osborne v Gangemi (2011) 9 ABC(NS) 257
Whitton v Perovich (2016) 14 ABC(NS) 85
Hingston v Westpac Banking Corporation (2012) 200 FCR 493
Re Mills; Ex parte Lloyds (1997) 73 FCR 551
Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378
Re Caruana; Ex parte Commissioner of Taxation (1987) 17 FCR 223
Jones v Dunkel (1959) 101 CLR 298
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Cubillo v Commonwealth (No.2) (2000) 103 FCR 1
Fabre v Arenales (1992) 27 NSWLR 437
Re Zamora Homes Pty Ltd (in liq), unreported Supreme Court of New South Wales, 18 January 2019 (no media-neutral citation), Black J
Deputy Commissioner of Taxation, in the matter of Italian Prestige Jewellery Pty Ltd v Italian Prestige Jewellery Pty Ltd [2018] FCA 983
Bendigo and Adelaide Bank Ltd v Clout (No.2) (2016) 14 ABC(NS) 69
Wigan v Edwards (1973) 1 ALR 497
Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1 KB 295;
Baldry v Jackson [1976] 2 NSWLR 415
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Harris v Western Australian Exim Corporation (1994) 56 FCR 1
Mouglalis v Bendigo and Adelaide Bank Ltd (2017) 250 FCR 92
Westpac Banking Corporation v Hingston (No.2) (2010) 8 ABC(NS) 439

Applicant: OLGA VOUKIDIS
First Respondent: GEORGINA ANASTASOPOULOS
Second Respondent: LOUISE THOMSON IN HER CAPACITY AS THE TRUSTEE FOR THE BANKRUPT ESTATE OF GEORGINA ANASTASOPOULOS
File Number: SYG 2634 of 2017
Judgment of: Judge Cameron
Hearing dates: 2-6, 9 September 2019
Date of Last Submission: 27 September 2019
Delivered at: Sydney
Delivered on: 25 November 2019

REPRESENTATION

Counsel for the Applicant: Mr A. Hopkins
Solicitors for the Applicant: Spinks Eagle
Counsel for the Respondents: Mr J. Rose
Solicitors for the Respondents: Diamond Conway

ORDERS

  1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2634 of 2017

OLGA VOUKIDIS

Applicant

And

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Voukidis v Anastasopoulos [2019] FCCA 3397
Case
[2019] FCCA 3397
Decision Date

CaseChat Overview and Summary

In *Voukidis v Anastasopoulos*, the Supreme Court of Victoria considered an application by Mr Anastasopoulos to set aside a composition with creditors entered into by Mr Voukidis. Mr Anastasopoulos, a creditor of Mr Voukidis, sought to have the composition annulled on the grounds that it was unreasonable, not calculated to benefit creditors generally, or for other reasons. The central dispute revolved around the validity and enforceability of the composition agreement.

The court was required to determine several key legal issues. Firstly, it had to ascertain who qualifies as a "creditor" with the standing to apply for the setting aside of a composition. Secondly, the court needed to consider the circumstances under which a composition is deemed to be "in force" and when it is discharged. Finally, the court had to assess whether the composition met the statutory requirements to be considered reasonable and beneficial to creditors generally, and if any other grounds existed for its annulment.

Judge Cameron reasoned that for a creditor to have standing to challenge a composition, they must have been a creditor at the time the composition was entered into. The court also clarified that a composition remains "in force" until it is fully performed or discharged according to its terms and the Bankruptcy Act 1966 (Cth). In determining whether the composition was unreasonable or not calculated to benefit creditors generally, the court applied a broad and practical approach, considering the overall fairness and likely outcome for all creditors. The court found that the composition was not unreasonable and was calculated to benefit creditors generally, and therefore dismissed the application to set it aside.

Orders

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