Pineview Property Holdings Pty Ltd v Dimitriou (No 2)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: WIGNEY J
• Judgment Date: 30 August 2019
• Neutral Citation: [2019] FCA 1416
• Date: 30 August 2019

FEDERAL COURT OF AUSTRALIA

Pineview Property Holdings Pty Ltd v Dimitriou (No 2) [2019] FCA 1416

File number:	NSD 1245 of 2018
Judge:	WIGNEY J
Date of judgment:	30 August 2019
Catchwords:	BANKRUPTCY AND INSOLVENCY – creditor’s petition – where debt relied upon is a judgment debt – where creditor seeks a sequestration order against the Respondent – where creditor’s petition opposed – notice of opposition to creditor’s petition had numerous grounds – whether bankruptcy notice was misleading because it did not identify the Respondent by name – whether there was “sufficient cause” why a sequestration order ought not be made – where debtor seeks to go behind judgment which is the basis for the debt in the creditor’s petition – whether substantial reasons shown for questioning judgment debt – whether debtor “solvent” or there was other “sufficient cause” not to make the sequestration order – whether requirements for making sequestration order satisfied ; PRACTICE AND PROCEDURE – hearing of creditor’s petition – where hearing had previously been adjourned multiple times – where grounds of opposition filed by debtor had been amended on previous occasions
Legislation:	Bankruptcy Act 1966 (Cth) ss 41(2), 52(1), 52(1)(c), 52(2), 52(2)(a), 52(2)(b) Bankruptcy Regulations 1996 (Cth) reg 4.02(1), 4.02(2), 4.02(3) Federal Court Rules 2011 (Cth) r 26.01(1)
Cases cited:	Ace Contractors & Staff Pty Ltd v Westgarth Development Pty Ltd [1999] FCA 728 American Express International Inc v Held (1999) 87 FCR 583 Australia & New Zealand Banking Group Ltd v Foyster [2000] FCA 400 Chief Commissioner of Stamp Duties (NSW) v Buckle (1998) 192 CLR 226 Christou v Demandem Holdings Pty Ltd [2012] FCA 695 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Corney v Brien (1951) 84 CLR 343 Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; 225 FCR 458 Dimitriou v Huybers [2017] NSWCA 252 Dimitriou v Huybers [2017] NSWCA 262 Dimitriou v Huybers (No 2) [2018] NSWCA 62 Eykamp v Deputy Commissioner of Taxation [2010] FCA 797 Furlong and Leishman v Wise & Young Pty Ltd & Ors (No 2) [2018] NSWSC 1987 Godfrey v Weriton Finance Pty Ltd [2013] FCA 1057; 221 FCR 363 International Alpaca Management Pty Ltd v Ensor [1999] FCA 72 Kleinwort Bensen Australia Limited v Crowl (1987-88) 165 CLR 71 Knudsen & Yates trading as The Hargreaves Practice, in the matter of Sanders v Sanders [2003] FCA 1079 Ling v Enrobook Pty Ltd (1997) 74 FCR 19 Octavo Investments Pty Ltd v Knight (1979) 144 CLR 360 Pineview Property Holdings Pty Ltd v Dimitriou [2019] FCA 1342 Ramsay Health Care Australia Pty Limited v Compton [2017] HCA 28; 261 CLR 132 Re Capel; Ex parte Caram Finance Australia Ltd (unreported, Federal Court of Australia, Finn J, 9 April 1998) Re Kostezky; Ex parte Milder Elfman Szmerling Krycer Pty Ltd (1996) 67 FCR 101 Re Sarina; Ex parte Wollondilly Shire Council (1980) 43 FLR 163; 30 ALR 266 Re Wimborne; Ex parte a Debtor (1979) 24 ALR 494 Rubino & Anor v Pineview Property Holdings Pty Limited & Ors [2016] NSWSC 904 Rubino v Pineview Properties Pty Ltd (No 6) [2018] NSWSC 340 Rubino v Pineview Properties Pty Ltd (No 6) [2018] NSWSC 340 Sandell v Porter (1966) 115 CLR 666 St George Wholesale Finance Pty Ltd v Spalla [2000] FCA 1094; 181 ALR 682 Turco & Co Pty Ltd v Pendella Holdings Pty Ltd; In the matter of Pendella Holdings Pty Ltd [2010] FCA 213 Wren v Mahoney (1972) 126 CLR 212 Wyse & Young International Pty Limited v Sanna (No 2) [2019] NSWSC 868 Wyse & Young International Pty Limited v Sanna (No 2) [2019] NSWSC 868 Wyse & Young International Pty Limited v Sanna [2019] NSWSC 683
Date of hearing:	14 December 2018 and 21 August 2019 and 21 August 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	General and Personal Insolvency
Category:	Catchwords
Number of paragraphs:	176
Counsel for the Applicant:	Mr D Allen
Solicitor for the Applicant:	Kekatos Lawyers
Solicitor for the Respondent:	Mr T Hall of Hall Partners (14 December 2018) and the Respondent appeared in person (21 August 2019)

ORDERS

		NSD 1245 of 2018
IN THE MATTER OF GEORGE DIMITRIOU
BETWEEN:	PINEVIEW PROPERTY HOLDINGS PTY LTD Applicant
AND:	GEORGE DIMITRIOU Respondent

JUDGE:	WIGNEY J
DATE OF ORDER:	30 AUGUST 2019

THE COURT ORDERS THAT:

1. A sequestration order under the Bankruptcy Act 1966 (Cth) be made against the estate of George Dimitriou.

2. The costs of the applicant be assessed by a Registrar of the Court and be paid from the bankrupt estate of George Dimitriou in accordance with the Bankruptcy Act 1966 (Cth).

THE COURT NOTES THAT:

1. The date of bankruptcy was 15 May 2018.

2. A consent to act as trustee signed by Louise Ann Thomson has been filed under s 156A of the Bankruptcy Act 1966 (Cth).

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

REASONS FOR JUDGMENT

WIGNEY J:

1. This judgment is the culmination of a long, drawn-out and tortuous hearing of a creditor’s petition.

2. On 30 June 2016, White J of the Supreme Court of New South Wales handed down judgment and made orders in the matter of Rubino & Anor v Pineview Property Holdings Pty Limited & Ors [2016] NSWSC 904. The plaintiffs in that matter, Mrs Biagina Rubino and Ms Lee Rubino (as executrix of the estate of the late Mr Alfio Rubino) had sued a number of parties, including Pineview Property Holdings Pty Limited, in respect of what could shortly be described as a series of property and financial transactions gone wrong. The litigation soon escalated and spawned a number of cross-claims against numerous other parties. In one of the cross-claims, Pineview and one of its directors, Ms Susan Huybers, sued Mr George Dimitriou, who had been retained to arrange or facilitate some of the financial transactions. The orders made by White J on 30 June 2016 included an order giving “judgment for the second cross-claimant (Pineview) against the third, fourth and fifth cross-defendants in the sum of $1,276,389.29…”. Though not expressly named in the order, Mr Dimitriou was the third cross-defendant on the third cross-claim. The fourth and fifth cross-defendants on the third cross-claim were Wyse & Young International Pty Ltd and Wyse Accounting Pty Ltd (Wyse companies), which are companies associated with Mr Dimitriou.

3. Mr Dimitriou did not pay the judgment debt to Pineview. On 18 April 2018,...