Apostolou (as Trustee of the Vasiliou Family Trust) v Marchesi

REASONS FOR JUDGMENT 1 The applicants seek leave to appeal from a judgment of Heerey J, given on 17 December 2008. On that day his Honour made orders which were, in substance and effect, designed to overcome attempts by the applicants, either acting by themselves or through other persons, to avoid the consequences of orders made by Jessup J in 2007. 2 Jessup J had declared that the beneficial title to each of three properties vested in the respondent as trustee of the bankrupt estate of Mr Vasiliou. His Honour also ordered that Mr Vasiliou deliver instruments of transfer to the trustee. His Honour further ordered that Ms Apostolou deliver up the duplicate certificates of title to one of the properties and to cause a caveat which had been lodged in respect of the three properties to be removed. An appeal to the Full Court from his Honour's orders was dismissed in November 2007. An application to the High Court for special leave to appeal from the decision of the Full Court was refused in October 2008. 3 Despite these developments the trustee was unable to obtain title to one of the properties which he wishes to sell because the mortgagee refused to produce the duplicate certificate of title in respect of that property and because, although the caveat lodged by Ms Apostolou was withdrawn, it was replaced by another caveat lodged by Optquest Pty Ltd ("Optquest") as trustee of the Vasiliou Family Trust. 4 In these circumstances Heerey J made orders that the mortgagee endorse the trustee's transmission application with an order to register and make available the duplicate certificate of title to the property. He also required Mr Vasiliou to cause Optquest to remove the caveat over each of the properties, in default of which a Registrar of the Court was to be directed and appointed to execute such a withdrawal. Each applicant was restrained from lodging or causing to be lodged any further caveats over the properties. 5 The applicants seek leave to appeal from Heerey J's orders. In order to obtain leave they must satisfy the Court that his Honour's decision was attended with sufficient doubt to warrant it being reconsidered and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 6 The applicants have filed a draft notice of appeal which contains twelve grounds. Most of them are either scandalous or unintelligible. The others go no further than making bald assertions that his Honour erred in making the various orders from which leave is sought to appeal. 7 Mr Vasiliou and Ms Apostolou appeared in person at the hearing of the application. Ms Apostolou sought an adjournment to enable her to obtain legal advice. I granted her application. Mr Vasiliou was prepared to proceed with argument and did so. I gave him the opportunity of developing arguments in support of the general allegations of legal error. He responded by submitting that the interlocutory application before Heerey J was illegal because neither the mortgagee, HSBC Limited ("HSBC"), nor Optquest had been made parties to the trustee's application. He referred me to three cases which he said supported this submission. They were VA Corporation of Aust Pty Ltd (In Liquidation) v Vasiliki Apostolou (as Trustee of the VA Unit Trust),(Unreported, Supreme Court of Victoria, Warren CJ, No 6086 of 2007), Chalker v Barwon Coast Committee of Management Inc [2005] VSCA 101 and Stergiou v Citibank Savings Ltd [2005] ACTCA 15. 8 When the matter returned to Court today following the adjournment Ms Apostolou did not appear. Mr Vasiliou again sought a stay of the orders made by Heerey J. He also sought a further adjournment of the hearing of the application until the hearing and determination of an application, which he proposed to file, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). That proposed application sought to challenge decisions made by Heerey, Jessup and Marshall JJ in their judicial capacities. Despite Mr Vasiliou's contention to the contrary, the proposed application would seem to have little, if any, prospect of success. It would appear to be out of time and no application for enlargement of time is made. Most, if not all, of the decisions are judicial decisions not administrative decisions and are, therefore, not subject to the ADJR Act. Furthermore, the application contains no viable grounds. It seeks to reargue issues resolved by Jessup J in 2007. There are also a number of scandalous allegations made against their Honours. 9 The trustee opposed the application for leave to appeal and the granting of any adjournment. 10 I decline to grant any further adjournment. 11 The position of HSBC may quickly be disposed of. The company had notice of the application before Heerey J. It has not sought leave to appeal from his Honour's orders insofar as those orders affect its interests. On the contrary, the company, through its solicitors, has advised the Court that it has already complied with the orders made by his Honour insofar as they required it to perform certain acts. 12 Optquest sought to make submissions before Heerey J. I was informed by Mr Vasiliou that his Honour had considered written material filed on behalf of Optquest but declined to act on it. In the event his Honour made no orders against Optquest. He did no more than order that Mr Vasiliou, the sole director and secretary of Optquest, do all things which were necessary to cause the caveat to be removed. Any attempt by Mr Vasiliou, acting either on his own behalf or on behalf of Optquest, to maintain that Optquest had a caveatable interest over any of the properties which were the subject of the declaration made by Jessup J would necessarily have involved an attempt to re-litigate issues relating to the beneficial ownership of the properties. Those issues had been determined by his Honour. Mr Vasiliou had the opportunity to raise such issues before Jessup J. He did so. He informed the Court that he had sought to agitate issues relating to Optquest's interests when the Full Court was dealing with the appeal from Jessup J's decision. Jessup J's orders, which were upheld on appeal by the Full Court, established that the unencumbered title to each of the three properties vested in the trustee. Any attempt, in the course of the application heard by Heerey J, to argue that Optquest had a caveatable interest in the properties would, as I have said, have involved an attempt to re-litigate issues which had been determined by Jessup J and the Full Court and would have been bound to fail. Heerey J, in my respectful view, made no error in failing to treat Optquest as a necessary party to the application which was before him or to have regard to evidence and submissions which sought to re-agitate issues which had been resolved in the previous year by the orders made by Jessup J. 13 The authorities relied on by Mr Vasiliou do not assist his argument in relation to the alleged necessity for Optquest to have been a party to the application. VA Corporation was a case in which Ms Apostolou sought curial recognition as a trustee of a unit trust. She sought that recognition in a proceeding, commenced by the Corporation by originating motion, in which it sought a declaration that it should be indemnified from the proceeds of sale of a property. Warren CJ held that it was necessary for Ms Apostolou to bring a separate proceeding to establish her entitlement to be treated as a trustee because this was not an issue in the proceeding instituted by the Corporation. In Chalker the Victorian Court of Appeal upheld the decision of a single judge that certain proceedings were a nullity because the moving parties had no standing to bring them, as they purported to do, on behalf of a trust. In Stergiou Crispin P held that a de-registered company could not be party to any proceeding and that any such purported proceeding would be a nullity. 14 The caveat lodged over the three properties by Optquest was signed by Panagiota Vasiliou, the daughter of Mr Vasiliou. In executing the caveat she purports to be the sole director and secretary of Optquest Pty Ltd and be authorised to sign the caveat on behalf of that company. In an affidavit, sworn on 19 December 2008 in support of the application for leave to appeal, Mr Vasiliou identifies himself as the sole director and secretary of Optquest. This assertion is supported by company records maintained by the Australian Securities and Investments Commission. It may, therefore, be doubted that the caveat has, in any event, been completed by an appropriate officer of the company. 15 The application for leave to appeal must be refused. Heerey J's orders do no more than facilitate, in a practical way, the achievement of the legal ends to which Jessup J's orders were directed. Heerey J's orders, when complied with, will remove obstacles to the transfer of clear title to the three properties to the trustee. The orders of Jessup J which were upheld by the Full Court, included, as already noted, a declaration that the beneficial title to each of the properties was vested in the trustee. The applicants have failed to demonstrate any error on the part of Heerey J. 16 On 23 December 2008 Marshall J refused an application, made by Mr Vasiliou and Ms Apostolou, for a stay of operation of the orders which Heerey J had made. The applicants also seek leave to appeal from Marshall J's orders. 17 The draft notice of appeal which has been filed by the applicants is again comprised of a bald allegation of error coupled with a variety of scandalous and unintelligible grounds. Mr Vasiliou made no attempt to identify any specific error allegedly made by Marshall J. 18 The stay which Marshall J refused was a stay of Heerey J's orders until the hearing and determination of the application for leave to appeal from Heerey J's decision. That application has now been disposed of. It has been refused. Even if the applicants had made good a case that Marshall J's decision was attended with sufficient doubt to warrant it being reconsidered (which they have not) no useful purpose would be served by granting leave to appeal from Marshall J's order refusing a stay. 19 The applications will be refused with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.