Wily in his capacity as trustee of the bankrupt estate of Psaroudis, in the matter of the bankrupt estate of Psaroudis
[2013] FCA 1348
•12 December 2013
FEDERAL COURT OF AUSTRALIA
Wily in his capacity as trustee of the bankrupt estate of Psaroudis, in the matter of the bankrupt estate of Psaroudis [2013] FCA 1348
Citation: Wily in his capacity as trustee of the bankrupt estate of Psaroudis, in the matter of the bankrupt estate of Psaroudis [2013] FCA 1348 Parties: ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS; BILL PSAROUDIS v ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS File number: NSD 727 of 2013 Judge: YATES J Date of judgment: 12 December 2013 Catchwords: BANKRUPTCY AND INSOLVENCY – application for discharge of summons for examination – whether the summons for examination was an abuse of process Legislation: Bankruptcy Act 1966 (Cth) ss 81(1), 81(1B), 149
Federal Court (Bankruptcy) Rules 2005 (Cth) r 6.17Cases cited: Crawford v Sellars (Trustee) in the matter of Hussen (Bankrupt) [2000] FCA 162 Date of hearing: 28 October 2013, 4 December 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 38 Solicitor for the Applicant/Respondent in the interim application: Ms A Kozary of ERA Legal Counsel for the Applicant in the interim application: Mr B Loukas Solicitor for the Applicant in the interim application: JP Leong & Co Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 727 of 2013
IN THE MATTER OF THE BANKRUPT ESTATE OF PSAROUDIS
ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS
ApplicantIN THE INTERIM APPLICATION
BETWEEN: BILL PSAROUDIS
ApplicantAND: ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS
Respondent
JUDGE:
YATES J
DATE OF ORDER:
12 DECEMBER 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The amended interim application filed on 26 September 2013 (the interim application) be dismissed with costs.
2.The applicant in the interim application pay the costs of the two appearances on 28 October 2013 on an indemnity basis; otherwise, the applicant in the interim application pay the costs as between party and party.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 727 of 2013
IN THE MATTER OF THE BANKRUPT ESTATE OF PSAROUDIS
ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS
ApplicantIN THE INTERIM APPLICATION
BETWEEN: BILL PSAROUDIS
ApplicantAND: ANDREW WILY IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF BILL PSAROUDIS
Respondent
JUDGE:
YATES J
DATE:
12 DECEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant in the interim application, Bill Psaroudis, has applied pursuant to r 6.17 of the Federal Court (Bankruptcy) Rules 2005 (Cth) to discharge a summons for examination dated 2 May 2013 (the summons) that was served on him pursuant to s 81(1) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act).
Mr Psaroudis was made bankrupt on his own petition on 13 January 2010. The respondent in the interim application, Andrew Hugh Jenner Wily, was appointed as Mr Psaroudis’ trustee in bankruptcy. Mr Psaroudis was discharged from bankruptcy by operation of law on 14 January 2013: s 149 of the Bankruptcy Act. Notwithstanding that discharge, the power to examine Mr Psaroudis remains, as the terms of s 81(1) of the Bankruptcy Act make clear:
Where a person (in this section called the relevant person) becomes a bankrupt, the Court or a Registrar may at any time (whether before or after the end of the bankruptcy), on the application of:
(a)a person (in this section called a creditor) who has or had a debt provable in the bankruptcy;
(b) the trustee of the relevant person’s estate; or
(c) the Official Receiver;summon the relevant person, or an examinable person in relation to the relevant person, for examination in relation to the bankruptcy.
Mr Psaroudis contends that the summons should be discharged because it is an abuse of the Court’s process. Mr Psaroudis says that his case in that regard is a “cumulative one”. He submits that a number of features and factors, when taken together, should satisfy the Court that an abuse of process exists. I will return to consider the particular features and factors on which Mr Psaroudis relies. However, the thrust of Mr Psaroudis’ application is that Mr Wily has sought the issue of the summons, and has proceeded with Mr Psaroudis’ examination, predominantly for an improper purpose.
For his part, Mr Wily points to the following matters, which do not appear to be in dispute. First, despite repeated requests, Mr Psaroudis failed, throughout his bankruptcy, to produce information and documents in relation to his income for the period 13 January 2010 to 12 January 2012. Secondly, following the presentation of his petition, and without Mr Wily’s knowledge, Mr Psaroudis sold property at 64 Alamein Road, Revesby Heights, New South Wales (the property), which he owed jointly with his brother. Settlement of the sale of the property took place on about 5 April 2011. The proceeds of sale have been deposited, and remain, in the trust account of Mr Wily’s solicitors. However, Reliance Financial Services Pty Ltd (Reliance), a company associated with a firm of accountants called CAP Accounting, claims an equitable charge or equitable mortgage in respect thereof arising from a Deed of Retainer and Loan dated 1 April 2009. Reliance claims that, by that instrument, Mr Psaroudis is indebted to it for $85,000 and interest thereon. This indebtedness is said to arise from funds advanced by Reliance and accounting services provided by CAP Accounting. Based on current inquiries, Mr Wily is not satisfied that:
·Reliance advanced funds;
·CAP Accounting provided accounting services to Mr Psaroudis; or
·Mr Psaroudis is indebted to Reliance or CAP Accounting as alleged.
Mr Wily seeks to examine Mr Psaroudis principally on these matters and has sought the production of documents. In this connection, Mr Wily, by his solicitor, Mr Gallant, examined Mr Psaroudis before a Deputy District Registrar of the Court on 19 August 2013. On that occasion, Mr Psaroudis did not produce the documents sought by the summons. However, he gave an undertaking to the Court to produce such documents within a stipulated period, before the adjourned date of his examination on 12 September 2013. On the adjourned date, Mr Psaroudis filed his application seeking to discharge the summons. By an amended interim application filed on 26 September 2013, Mr Psaroudis also sought access to the affidavit made by Mr Wily in support of the issue of the summons, which was filed on 30 April 2013. I have now allowed access to that affidavit in light of the disclosures made in the written submissions filed on Mr Wily’s behalf which effectively disclose the contents of the affidavit.
Mr Psaroudis submits as follows.
First, although he can be examined pursuant to s 81(1) of the Bankruptcy Act after his discharge from bankruptcy, the fact that Mr Wily has sought to do so “more readily lends itself to scrutiny”.
Secondly, the documents sought by the summons cover periods expressed to end at the date of the summons (2 May 2013), whereas Mr Psaroudis’ bankruptcy ended on 14 January 2013. Mr Psaroudis submits that an examination under s 81(1) of the Bankruptcy Act must be “in relation to the bankruptcy”. He submits that the documents sought in paragraph 3 of the summons “do not have that purpose as their temporal scope”.
Thirdly, Mr Wily has not adduced evidence of “creditor interest in the examination”. Mr Psaroudis submits that “the Court should not consider that a balance of justice, convenience and creditor interest favours the examination”.
Fourthly, Mr Wily did not inform Mr Psaroudis, until very recently, that he had been discharged from bankruptcy. Mr Psaroudis asserts that, on at least two occasions, a representative from Mr Wily’s office, Fleur Evans, represented to Mr Psaroudis that, to be discharged from bankruptcy, “he first needed to satisfy some ad hoc imposed criteria”. Mr Psaroudis submits that these alleged conversations confirm “that Mr Wily’s office is prepared to be less than frank in its dealings with [him] and that it is acceptable to take advantage of [his] misapprehension to further its ends”.
Fifthly, the predominant reason for the examination is “to apply pressure to Mr Psaroudis to toe Mr Wily’s pre-determined line in opposition to” Reliance and CAP Accounting. This submission appears to relate to Mr Wily’s expressed lack of satisfaction of the matters referred to at the end of [4] above. This submission appears to be the foundation for the allegation that the issue of the summons, and Mr Psaroudis’ examination, is an abuse of process.
Sixthly, by letter dated 12 September 2013, Mr Wily’s solicitors wrote to Mr Psaroudis’ solicitors asking whether those solicitors had instructions to accept service on behalf of Reliance and CAP Accounting of court process. Mr Psaroudis submits that this request exemplifies the abuse of process and that the issue of the summons was to conduct an examination to “[p]rocure a win in those proceedings … through applied pressure” and to “[o]btain documents that would otherwise be producible in the course of those other (or foreshadowed) proceedings”. In support of this submission, Mr Psaroudis points to the request in this letter having been made on the afternoon of the adjourned hearing of Mr Psaroudis’ examination pursuant to the summons.
In my view, these grounds, considered cumulatively, do not establish that the issue of the summons, or steps taken in relation to it subsequent to its issue, including Mr Psaroudis’ examination, constitute an abuse of process.
My starting point for reaching this conclusion is that, at the time the issue of the summons was sought, Mr Psaroudis had not provided information and documents to Mr Wily in relation to Mr Psaroudis’ income for the period 13 January 2010 to 12 January 2012. Moreover, Mr Wily is possessed of funds that derive from a transaction undertaken after the commencement of Mr Psaroudis’ bankruptcy and in respect of which Reliance, at least, has asserted a claim. Mr Wily has made no secret of the fact that, in light of that claim, which is apparently maintained, it is likely that it will be necessary for him to commence proceedings against Reliance, and persons or interests associated with it, to resolve that claim. Mr Wily submits, however, that he:
… requires additional information to determine whether there is any basis for the proceedings. [He] is aware of the risks of litigation and is jealous to ensure that any proceedings are properly commenced without exposing himself or the estate to any undue risks.
These two matters form the basis on which, in his affidavit filed on 30 April 2013, Mr Wily applied for the issue of the summons. They are the two matters which he has advanced in this hearing as providing sound reasons why the issue of the summons and the conduct of Mr Psaroudis’ examination do not constitute an abuse of the Court’s process.
I turn to consider the individual grounds advanced by Mr Psaroudis.
The first matter is that Mr Wily has sought to examine Mr Psaroudis after his discharge from bankruptcy. In my view, nothing turns on that fact in the present case. There is no evidence before me as to why Mr Wily could not have applied to examine Mr Psaroudis before his discharge from bankruptcy. But the fact remains that Mr Psaroudis has failed to comply with Mr Wily’s requests for information and documents about his income. Those requests were made during the time that Mr Psaroudis was a bankrupt and simply seem to have been ignored. The fact also remains that Mr Wily is possessed of funds, the entitlement to which is a matter of present dispute. On the evidence, I have no reason to doubt that, more likely than not, the dispute will require resolution in court proceedings.
The second matter concerns the production of documents. It is clear that the summons seeks the production of at least some documents in relation to matters “to date”, namely, 2 May 2013, after Mr Psaroudis’ discharge from bankruptcy on 14 January 2013. The documents are sought, however, for periods commencing from 13 January 2010, the date on which Mr Psaroudis became bankrupt. I do not think that, simply because documents are sought “to date”, those documents cannot, nevertheless, relate to Mr Psaroudis’ examinable affairs: see s 81(1B) of the Bankruptcy Act. The documents sought are records of income, tax returns, correspondence with the Australian Taxation Office and transactions, and related documents concerning Mr Psaroudis’ indebtedness to Reliance. These documents all appear to be adjectivally relevant to the two matters on which Mr Wily has sought to examine Mr Psaroudis.
The third matter is that Mr Wily has not adduced evidence of “creditor interest in the examination”. I am unable to see the significance of that submission in the present case. The matters on which Mr Wily seeks to examine Mr Psaroudis are relevant to the administration of his bankrupt estate. They are also matters which must be dealt with for the administration of that estate to be finalised.
The fourth matter is that, according to Mr Psaroudis, he was not informed, until recently, that he had been discharged from bankruptcy. In this connection, Mr Psaroudis has deposed to two telephone conversations with Ms Evans. Ms Evans has deposed that she has the day-to-day conduct of the administration of the bankrupt estate. Mr Psaroudis said that, in telephone conversations in February and June 2013, Ms Evans, in effect, represented that Mr Psaroudis would not be discharged from bankruptcy until the claim by Reliance is resolved. In her affidavit, Ms Evans said that it is not Mr Wily’s usual practice to send any documents to a bankrupt notifying him or her of his or her discharge from bankruptcy until the administration of the bankrupt estate has been finalised. The administration of Mr Psaroudis’ bankrupt estate is yet to finalise. In any event, Ms Evans denied having the conversations recorded by Mr Psaroudis in his affidavit. Her evidence is that, in a telephone conversation with Mr Psaroudis in February 2013, she told him that he had been “released” from bankruptcy but that the dispute with Reliance remained to be resolved.
Neither Mr Psaroudis nor Ms Evans was cross-examined on this conflicting evidence. On the state of the evidence, I am not able to determine what was said in the telephone conversations between them. As an objective matter, I cannot see why Ms Evans would misrepresent the fact of Mr Psaroudis’ discharge from bankruptcy, when that fact could be ascertained simply from a public search. For the purposes of this application, I am not prepared to find, as Mr Psaroudis submits, that “Mr Wily’s office is prepared to be less than frank in its dealings” with him or that it holds the view that “it is acceptable to take advantage of Mr Psaroudis’ misapprehension to further its ends”.
The fifth matter focuses on what Mr Psaroudis submits is Mr Wily’s predominant reason for examining him. As I have noted, Mr Psaroudis submits that this was to apply pressure to him to “toe Mr Wily’s pre-determined line” in relation to the claim made by Reliance to the funds presently held in trust by Mr Wily’s solicitors. This submission depends on my acceptance that certain conversations, to which Mr Psaroudis has deposed, took place in the terms recorded by him. These conversations include the two telephone conversations to which I have already referred. They also include a conversation which Mr Psaroudis says took place with Ms Evans and Mr Gallant shortly after Mr Psaroudis was examined on 19 August 2013 and a telephone conversation with Ms Evans on 6 September 2013. The terms of the conversation on 19 August 2013 are denied by both Ms Evans and Mr Gallant, and the terms of the telephone conversation on 6 September 2013 are disputed by Ms Evans. Once again, there was no cross-examination of any deponent in relation to these conversations. On the present state of the evidence, I am unable to accept that the conversations took place as deposed to by Mr Psaroudis.
Importantly, in this connection, I am not persuaded that Mr Wily’s desire to obtain information in relation to Reliance’s asserted claim constitutes an abuse of process. In Crawford v Sellars (Trustee) in the matter of Hussen (Bankrupt) [2000] FCA 162, Sundberg J said (at [4]-[7]):
4In Karounos v Official Trustee (1988) 19 FCR 330 the Full Court examined the case law on s 81. The following propositions, amongst others, can be derived from the case:
ˑ The power given by s 81 is unusual and far‑reaching.
ˑThe power is exercised in the interests of creditors, and those interests are not to be defeated by an unduly technical or restrictive approach to the use of the power.
ˑAn examination is designed to establish what assets the bankrupt had, what has happened to them, and whether action should be begun, or continued, to recover them.
ˑDischarge or adjournment of a summons may be appropriate where there is litigation pending or likely to be instituted and it is alleged that:
ˑthe summons is being improperly sought as an aid to that litigation, where ordinary procedures of discovery, interrogation or subpoena would be fairer and more appropriate; or
ˑit would be more just and equitable to defer the examination until the litigation has been disposed of.
ˑThere is no material difference in principle between cases where proceedings have actually been instituted and where they are merely in contemplation.
ˑWhere litigation is pending or likely to be brought, and the information sought under a summons could affect that litigation, there is no presumption that the summons will be set aside or adjourned.
ˑNormally the summons will be set aside only if the court finds some improper motive behind the application.
ˑThe Court will give due weight to the fact that the summons is issued at the request of the Official Trustee who will not be presumed to have acted unfairly or for an improper purpose except on convincing evidence.
The last mentioned proposition applies equally, in my view, to a registered trustee such as the respondent.
5As appears from the Full Court’s decisions in Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69 at 91, an abuse of the examination process might occur if
ˑlitigation is on foot or in contemplation, and a potential witness is summoned simply for the purpose of destroying his or her credit and thereby gaining a forensic advantage
ˑ all that is intended is a dress‑rehearsal for cross‑examination
ˑde facto discovery is sought where discovery in existing proceedings has been refused
ˑthe examination was designed to obtain evidence for use in existing or contemplated proceedings brought or to be brought by someone other than the trustee.
6The fact that other proceedings have been commenced or are contemplated by the trustee does not, of itself, make it an abuse of process to secure the issue of a summons. Indeed a trustee is entitled to inquire into the very matters the subject of existing proceedings. In Re Jonson; Ex parte Prentice (1 September 1997, unreported) the trustee had commenced proceedings under ss 120 and 121 to have transfers of land set aside. He secured the issue of notices under s 77C (the predecessor of s 81) for the examination of persons connected with the transferees. Lockhart J said:
“It will be important for the Official Receiver and the trustee, when the examinations are being conducted, to ensure that they are not used for any improper purpose, such as examining the witnesses simply for the purpose of destroying their credit or obtaining any other forensic advantage. [They] must be used for the purposes of legitimate enquiry to obtain information concerning the assets, liabilities, income and expenditure of the bankrupt and for the purpose of ascertaining information about the property transactions which are impeached in the current proceedings in this Court.”
7In Official Trustee v Harbream (8 December 1998, unreported) North J, after setting out the above passage, said:
His Honour clearly contemplated that the power to examine under s 77C could properly be used for the purpose of the Official Receiver inquiring into the very matters which were the subject of extant proceedings.
…
I agree … that s 77C(1)(a) allows the Official Receiver to conduct an examination which has a link with the proceedings being conducted. That is to say, one of the functions of the Official Receiver is to identify and get in the property and assets of the bankrupt. One way in which that is done is by the commencement of legal proceedings. It is legitimate for the Official Receiver to use the power in s 77C to advance properly the process of identifying and getting in the assets of the bankrupt.”
See also Re McKee; Ex parte Laroar Holdings Pty Ltd (4 December 1996, unreported).
Nothing has been put to me that would show that, by seeking information in relation to Reliance’s claim to the proceeds of sale of the property, the summons has been issued, and Mr Psaroudis’ examination has been conducted, for a purpose or purposes that are improper.
The sixth matter relates to Mr Wily’s solicitors sending a letter dated 12 September 2013 to Mr Psaroudis’ solicitors, JP Leong & Co Solicitors, inquiring whether those solicitors had instructions to accept service on behalf of Reliance and CAP Accounting of court process. That letter indicates that discussions between Mr Wily’s solicitors and Mr Psaroudis’ solicitors took place on that day. There is no evidence before me of the content of those discussions. The evidence does show, however, that, on 12 September 2013, Mr Wily’s solicitors also wrote to CAP Accounting directly demanding repayment of the sum of $10,072.31 which had been paid to that firm by the Australian Taxation Office as a tax refund owed to Mr Psaroudis. The letter stated, in part:
… On 30 November 2010 the bankrupt was informed by the Australian Taxation Office that a tax refund of $10,072.31 had been forwarded to the [bankrupt’s] nominated financial institution.
The monies were paid at a time when Mr. Psaroudis was bankrupt and of course should have been paid to the trustee.
The monies were not paid to Mr. Psaroudis, the existence of the refund was not disclosed to the trustee until September this year and when Mr. Psaroudis was asked what happened to the refund, he informed the trustee that it was paid to you.
These are monies which properly belong to the bankrupt estate and should be repaid to the trustee forthwith and without further notice.
The purpose of this letter is to demand you repay to the trustee the amount of $10,072.31 within 14 days.
If the monies are not paid within this time, proceedings will be commenced against you forthwith and without further notice seeking repayment of those monies. If those proceedings are brought, interest on the monies payable will be sought as will the costs of the proceedings. …
This suggests that the inquiry as to whether Mr Psaroudis’ solicitors had instructions to accept service of court process related to that particular claim. The evidence also shows that Mr Psaroudis’ solicitors did in fact respond to the letter of demand by a letter dated 16 September 2013 in which they plainly stated that they acted for CAP Accounting. In that capacity, they asserted that the refund did not form part of Mr Psaroudis’ bankrupt estate. Curiously, by letter dated 17 September 2013, Mr Psaroudis’ solicitors then informed Mr Wily’s solicitors as follows:
… We act for Mr Psaroudis, not Reliance Financial Services NSW Pty Ltd or Armstrong Scalisi Holdings Pty Ltd T/AS CAP Accounting. We do not know who acts for them. …
The contradictory nature of that communication, so far as it concerns CAP Accounting’s legal representation, has not been explained.
In my view, the letter dated 12 September 2013 from Mr Wily’s solicitors inquiring as to whether Mr Psaroudis’ solicitors had instructions to accept service on behalf of Reliance and CAP Accounting is without significance so far as the present application is concerned, other than to show that there are outstanding matters of significance which stand in the way of finalising Mr Psaroudis’ bankrupt estate.
I am not satisfied that Mr Psaroudis has established a proper basis to set aside or to discharge the summons. His application will be dismissed with costs.
As to the question of costs, Mr Wily seeks an order that the costs of two appearances on his behalf on 28 October 2013, when the present application was first listed for hearing, be paid on an indemnity basis. The reason for seeking that particular order arises from the following matters.
When the application was called on for hearing on 28 October 2013, Mr Psaroudis appeared in person and sought an adjournment. The reason advanced for an adjournment was as follows:
… Apparently my barrister’s wife has been taken to hospital over the weekend and I have received a phone call in the morning that he won’t be able to appear for me and my solicitor is overseas on business and I have been asked to come in, if I can get it adjourned.
I then ascertained from Mr Psaroudis his barrister’s name. Relying on what I had been told, I adjourned the hearing of the application to 4 December 2013.
Following that appearance, Mr Wily’s solicitors contacted the barrister who had been named. The barrister informed Mr Gallant that he had not been briefed in the matter and knew nothing about the reason for seeking an adjournment that had been given by Mr Psaroudis that morning. Armed with that information, Mr Wily’s solicitors sought to have the matter relisted later on 28 October 2013. Mr Gallant made an affidavit deposing to his inquiries and, in particular, his conversation with the named barrister.
When the matter was relisted, Mr Psaroudis was represented by a solicitor who said she appeared “as city agent for the respondent in this matter”, although I note that Mr Psaroudis’ solicitors carry on practice at 70 Pitt Street, Sydney. After an exchange between the solicitor appearing for Mr Psaroudis and myself as to the source of the information that formed the basis for Mr Psaroudis’ adjournment application, I was informed, on instructions given directly by Mr Psaroudis, that the information had been supplied by Mr Leong, the principal of Mr Psaroudis’ solicitors, in a telephone conversation that took place by mobile phone at 7.00 am that morning. I then made the following orders:
1.Leave be granted to the applicant in the proceeding to file in court the affidavit of Simon Gallant affirmed 28 October 2013.
2.Mr Leong of JP Leong & Co Solicitors, Suite 12, Level 6, 70 Pitt St, Sydney NSW 2000, the solicitors for Mr Psaroudis, the applicant on the amended interim application filed on 26 September 2013, file and serve, on or before 1 November 2013, an affidavit deposing to the terms of:
(a)the conversation or any other communication he had with Mr Psaroudis on or about 7.00 am on 28 October 2013 concerning the reason for Mr Psaroudis seeking an adjournment of the hearing on 28 October 2013 of the amended interim application filed on 26 September 2013; and
(b)any conversation or other communication he had with counsel briefed to appear for Mr Psaroudis on the hearing of the interim application concerning the reason why counsel was unable to appear for Mr Psaroudis on the hearing on 28 October 2013 of the amended interim application.
3.A copy of these orders be served on Mr Leong by the solicitors for the applicant in the proceeding by email at the email address provided by JP Leong & Co Solicitors for service, such service to be effected by 4.00 pm today.
4.There be liberty to apply on three days’ notice.
5.The costs of the application made this afternoon be reserved.
An affidavit was filed by Mr Leong on 1 November 2013. In that affidavit, Mr Leong deposed to the fact that he did not have any conversation or any other communication with Mr Psaroudis on 28 October 2013. Indeed, he said that he had never spoken to or had any other communication with Mr Psaroudis in the past.
At the hearing of this application on 4 December 2013, I raised with counsel then appearing for Mr Psaroudis (who was not the counsel named on 28 October 2013) my concern that a false reason had been advanced for seeking the adjournment I had granted. After granting a short adjournment to enable counsel to confer with Mr Psaroudis to ascertain whether Mr Psaroudis wished to give evidence on the matter, counsel informed the Court that he did not wish to call Mr Psaroudis and that he did not resist Mr Wily’s application for costs, save that costs should not be awarded on an indemnity basis.
In this state of affairs, I am satisfied that a false reason was advanced to obtain the adjournment of the appointed hearing on 28 October 2013. I remain unsatisfied as to how that false reason came to be advanced. Nevertheless, the adjournment was improperly obtained. Mr Wily’s solicitors quite properly sought to have the application relisted later on 28 October 2013 to inform the Court of the inquiries that had been made which suggested this falsity.
In my view, the costs of the two appearances on that day should be awarded against Mr Psaroudis on an indemnity basis, to mark the Court’s strong disapproval of the reprehensible conduct involved in obtaining the adjourment on 28 October 2013.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 12 December 2013
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