The application by George Velissaris to be joined as a co-applicant, or substituted as the applicant in these proceedings is dismissed.
[2]
The application by George Velissaris to join the directors of the respondent as parties to this proceeding is dismissed.
[3]
For many years, George Velissaris was involved with a Greek restaurant on land at 333-335 Sydney Road, Brunswick, owned by Maryvell Investments Pty Ltd. He was the sole director of Maryvell which granted a licence to Sigma Constructions Pty Ltd to gain access, through the land on which the restaurant was situated, to an adjoining property on which it was building a large unit development. Unfortunately, things did not go smoothly and Maryvell commenced proceedings in this tribunal in 2003 to have the licence revoked, or as Mr Velissaris describes it, to have Sigma evicted because, he contends, the heavy equipment used by Sigma damaged the sewerage system and he was forced to close the restaurant. A second proceeding was commenced in 2003 in which Maryvell claimed significant damages.
Sigma successfully appealed against the tribunal's decision to grant Maryvell a permanent injunction restraining Sigma, its servants and agents from entering upon any part of Maryvell's land. In December 2004, the Court of Appeal having determined the tribunal had jurisdiction, the matter was otherwise remitted to the tribunal to consider Maryvell's outstanding claims.[1] There followed a number of interlocutory hearings when various directions were made for the further conduct of both proceedings.
Maryvell was placed into liquidation and Laurence Fitzgerald appointed liquidator on 19 June 2006. The property was sold in 2008.
Since then, Mr Velissaris has commenced, or sought leave to commence, a number of proceedings in the Supreme Court of Victoria, the Federal Court of Australia and has sought leave to appeal to the High Court of Australia on at least two occasions. Orders have been made in both the Supreme Court of Victoria and the Federal Court of Australia requiring Mr Velissaris to obtain leave before any further proceedings can be commenced.
I am aware of two applications where leave to commence further proceedings have been refused by the Supreme Court of Victoria[2].
Mr Velissaris now seeks to be joined as a co-applicant to, or alternatively to be substituted as the applicant in, the two proceedings in this tribunal and, further to join the directors of Sigma as respondents. The application is opposed by Laurence Fitzgerald, the liquidator of Maryvell, and by Sigma and its directors who were represented at this directions hearing by Mr V Zarogiannis, solicitor.
I understand the last few years have been very difficult for Mr Velissaris. He has suffered from ill health, as has his son. He clearly feels that he has been badly let down by the various legal advisors engaged by Maryvell (I believe at least eight different firms of solicitors were instructed to act on its behalf at one time or another), and by the legal system. He is also very unhappy and angry about Mr Fitzgerald's conduct of the liquidation.
Unfortunately, though, and as Mr Velissaris has been told by a number of judges in each of the courts in which he has sought to make similar claims, he must demonstrate that he has a cause of action known to law before he can proceed with any of the claims he believes he has.
[4]
Mr Velissaris' application to be joined as a co-applicant, or alternatively substituted as the applicant in both proceedings
[5]
Mr Velissaris is a prolific letter writer. He has written to the tribunal on a number of occasions since January this year. Unfortunately, his handwriting is very difficult to read, particularly when documents and correspondence are sent by facsimile. He has also made a number of applications but as I understand it, Mr Velissaris' primary application is that he be joined as a co-applicant to, or substituted as the applicant in this proceeding.
He says that Maryvell was the trustee company for his family trust under which his children are the beneficiaries, but as he is now the trustee of the family trust he is entitled to bring these proceedings. And, further that he is entitled to bring the proceedings in his own capacity as the former operator of the Greek bar Tavern 'Kalamata' Restaurant. In support of his application he has provided a copy of the Certificate of Registration for the business name Greek-Bar-Tavern & Club Mediterraneo showing this business name was first registered on 3 June 1998. I note that following the registration of this business name, Mr Velissaris was declared bankrupt on 29 October 1999 for a period of three years.
He has also provided a copy of the Certificate of Registration for the business name Greek Bar Tavern the 'Kalamata' & Mediterraneo Restaurant showing this name was first registered on 6 July 2004, well after these proceedings were commenced by Maryvell.
Mr Velissaris has filed a copy of a Deed of Settlement dated 5 June 2006 under which as appointor of the Maryvell Family Trust he removed Maryvell as the trustee and appointed Mary Patroungas. He has also filed a copy of a Deed of Settlement dated 9 November 2006 under which as appointor of the Maryvell Family Trust he appointed Constantinos Velissaris or George Velissaris as the trustee in place of Mary Patroungas who was recorded as having resigned as the trustee on the same day. I understand that Mr Velissaris is known both as Constantinos Velissaris and George Velissaris.
It seems the November 2006 Deed of Settlement is but one of a number of documents prepared by Mr Velissaris seeking to vary the terms of the Maryvell Family Trust. I do not propose to refer to all of the 'related' proceedings in other courts. However, it seems from reading the various judgements available on AustLII that, in each instance, Mr Velissaris' submissions have focussed on his belief that he has been harshly treated by the legal system which he believes has let him down. The judgements also reveal that the merits of the matters he seeks to ventilate in this tribunal have been considered, and dismissed in those other proceedings, as lacking in substance in those other proceedings.
In Tolhurst Druce & Emmerson (a firm) v Maryvell Investments Pty Ltd (in liq)[2007] VSC 271 her Honour Justice Dodds-Streeton, as she then was, heard three applications together, two by Mr Velissaris and one by Maryvell, in which she considered Mr Velissaris' claims that he was entitled to possession of and to remain in occupation of the property, and Maryvell's application for recovery of possession.
Her Honour summarised the facts and evidence - the following are relevant here:
Mr Velissaris purchased the property in 1984;
Maryvell was the trustee of the Maryvell Family Trust ('the Family Trust') which was established by Deed of Settlement dated 30 January 1998 ('the Trust Deed');
The appointer was George Velissaris;
The primary beneficiaries were Mr Velissaris' two children;
By virtue of clause 1.1 of the Trust Deed, Mr Velissaris as the father of the primary beneficiaries is a beneficiary of the Family Trust.
Under clause 17 of the Trust Deed the appointer has the power to remove and appoint trustees, but as a beneficiary of the Family Trust the appointer, in this instance, George Velissaris, was not eligible for appointment as a trustee.
Under clause 19 of the Trust Deed, the office of trustee is automatically determined and vacated, if among other things, the trustee is a company which goes into liquidation.
Maryvell became the registered proprietor of the property on 20 March 1998;
Mr Velissaris was declared bankrupt on 29 October 1999. At that time he signed a Statement of Affairs in which it was acknowledged that Maryvell owned the property as the trustee of the Family Trust, and that Mr Velissaris owned and operated the restaurant business but had virtually no assets. There was no acknowledgement of any claim by Mr Velissaris that he had any interest in the property.
Mr Velissaris was discharged from bankruptcy on 30 October 2002.
On 15 May 2006 Maryvell purported to grant Mr Velissaris a lease of the premises for a five year term with an option for a further five years.
On 15 June 2006 Mr Velissaris, as appointer, removed Maryvell as the trustee of the family trust and appointed Mary Velissaris (also known as Mary Patroungas) in substitution.
On 19 June 2006 Master Efthim ordered Maryvell be wound up and Mr Fitzgerald was appointed liquidator;
Her Honour then considered various affidavits filed by Mr Velissaris. In particular, in his affidavit sworn 7 March 2006 filed in opposition to the application for winding up of Maryvell he stated at paragraph 15:
[6]
The two major assets of the company [Maryvell] are the premises located at 333-335 Sydney Road, Brunswick, and an action against Sigma Constructions (Vic) Pty Ld which is pending in the Victorian Civil and Administrative Tribunal.
[7]
In his affidavit sworn 25 May 2006 he again stated that Maryvell owned the property and operated a restaurant business from the premises.
In his affidavit sworn 13 June 2006 Mr Velissaris stated that Maryvell was the sole proprietor of the property and that it operated a restaurant business at the property; and he was involved in running the business as manager, chef and food safety supervisor. Further, that Maryvell intended to continue operating the business, and that all plant and equipment was owned by Maryvell.
In a further affidavit sworn 4 December 2006 Mr Velissaris stated that he, not Maryvell, was the owner of the restaurant business - since 1990, and that on 5 June 2006 he had removed Maryvell as the trustee, and that he and Mary Patroungas were now the trustees of the family trust.
In a further affidavit sworn 30 March 2007 Mr Velissaris again deposed to being the owner and operator of the restaurant business since 1998, and that on 9 November 2006 he, as appointer, had removed Mary Patroungas as the trustee and he was now the trustee of the family trust.
Apparently Mr Velissaris did not disclose his bankruptcy until it was disclosed in an affidavit of Ms Dreese sworn 18 April 2007. Thereafter Mr Velissaris swore a further affidavit on 24 May 2007 in which he admitted the bankruptcy but denied the trustee in bankruptcy had acquired an interest in the property, and denied Maryvell had ever been the owner of the restaurant business.
After considering the various inconsistencies in the relevant documents her Honour found at [147]
[8]
In summary, in so far as the deed of agreement and settlement is capable of bearing any sensible construction, it suggests that any interests of Mr Velissaris thereunder, if enforceable, were such as would have vested in his trustee in bankruptcy in 1999. The uncertainty, contradictions and admittedly false description of the transaction (including the consideration by transfer of the property) indicate, however, that any interests would not have been enforceable. The document purports to record an agreement to transfer a property to be held on certain trusts or otherwise to benefit the transferor, when there could have been no intention to change the ownership, as it was already vested in the company.
[9]
As stated above, in my opinion, Mr Velissaris has not established a credible claim based on a solid foundation to any current entitlement to occupy or possess the property pursuant to the [June 2006] deed of agreement and settlement. Irrespective of Mr Velissaris' poor credit, there are significant obstacles to the validity of any interests created under it. Moreover, any enforceable interest which was created would have vested in Mr Velissari's trustee in bankruptcy in 1999.
[10]
Her Honour also considered whether the property was, at that time, held by Maryvell as trustee of the Maryvell Family Trust:
The liquidator ultimately did not concede that the company held the property as trustee of the Maryvell Family Trust or indeed, of any other trust. Mr Gardiner submitted, correctly in my opinion, that the deficient state of the evidence did not permit a conclusion as to whether the company held its title beneficially or on trust.
[11]
The principal document said to evidence the company's acquisition of its registered title as a trustee is the [June 2006] deed of agreement and settlement. As state above, there is no fairly arguable case that the document was effective to create or evidence the trust or trusts it purported to describe. Further, in my view, it suggests that if the property was held on trust, it was for Mr Velissaris, rather than on the terms of the Maryvell Family Trust. The claimed entitlement to occupy the property rent-free and the equitable fee simple, in so far as they were otherwise valid, would have vested in the trustee in bankruptcy in 1999 and Mr Velissaris would have no subsisting entitlement pursuant to the deed of agreement and settlement ...
Her Honour also commented upon Mr Velissaris' changing evidence about the ownership of the restaurant business before noting at [210]:
[12]
Although Mr Velissaris has successively altered his account of the ownership of the restaurant business, ultimately [counsel] conceded that the company [Maryvell] had operated and incurred liabilities only in its capacity as the trustee of the Maryvell Family Trust.
[13]
Following an unsuccessful application for leave to appeal to the Victorian Court of Appeal, Mr Velissaris sought special leave to appeal to the High Court which was also refused[3].
Irrespective of the capacity in which Maryvell held the property it was the trustee of the family trust at the time these proceedings were commenced. It has since gone into liquidation and the liquidator has confirmed it will not be continuing with either proceeding.
Whilst I understand Mr Velissaris is very distressed, he has not persuaded me that there is any legal basis for his joinder as a co-applicant, or to be substituted as the applicant in these proceedings. He could not be joined as a co-applicant to proceedings in which the current applicant, Maryvell, has confirmed it does not wish to continue with those proceedings.
As is abundantly clear from Tolhurst Druce & Emmerson (a firm) v Maryvell Investments Pty Ltd (in liq) the various Deeds of Settlement prepared by Mr Velissaris are poorly drafted and are legally inconsistent. As is apparent from her Honour's comments in that case, there is considerable doubt about the validity of Mr Velissaris' appointment as the trustee of the family trustee under the November 2006 Deed. At [97] she noted:
[14]
...In contrast to the copy exhibited to Mr Velissaris' affidavit, the copy of the Trust Deed produced by Bank West did not contain the handwritten annotations by Mr Velissaris, which purport to exclude the trustee's right of indemnity against the trust assets and to amend the clause providing that beneficiaries are disqualified from holding office as trustee by providing that only primary beneficiaries are disqualified.
[15]
In any event, Mr Velissaris has not demonstrated to me that he has any arguable claim against Sigma either in his capacity as trustee of the Maryvell Family Trust, assuming that his appointment is valid, or in his personal capacity. In the voluminous correspondence he has sent to the tribunal since the beginning of this year, he has consistently said he wants to claim 'the big loss of profits and goodwill' suffered as a result of the damage to the sewer lines and destruction of his Greek Bar Tavern by Sigma, but he has not set out any legal basis on which those claims are made.
In considering the judgements available on AustLII it is clear that all of the matters Mr Velissaris seeks to raise in support of his application have been ventilated and rejected in his numerous applications to other Courts. The comments by Davies J in Re Maryvell Investments Pty Ltd (in liq)[2010] VSC 278 in refusing Mr Velissaris leave to file an application to terminate the liquidation of Maryvell and for an account of the moneys from the sale of the property are equally applicable here. Her Honoour said at [11]
[16]
...However, a person's belief that he has a case against another person is not sufficient by itself to allow that person to institute proceedings. It is incumbent on the party instituting the proceedings to disclose a reasonable cause of action. In the absence of being able to show that there is a proper basis for the making of the claim, the proceeding should not be allowed to continue.
[17]
Mr Velissaris also seeks to join the directors of Sigma as parties to these proceedings. As I have refused his application to be joined as a co-applicant, or substituted as the applicant in both proceedings, the joinder applications must also fail because Mr Velissaris is not a party to the proceedings. Even had Mr Velissaris been successful in either of his primary applications, I would have dismissed the joinder applications.
Applications by Maryvell to join the directors were refused by Judge Bowman on 3 February 2006, and again on 3 May 2006. I have not looked at, or considered, any of the material filed in support of the earlier allegations other than the affidavit sworn by Mr Velissaris on 5 April 2006 which he has filed in support of this application. Although the 5 April 2006 affidavit is headed 'Affidavit in opposition to Summons to Appear dated 24th November 2005' it includes many paragraphs in support of the application to join Sigma's directors. The oral submissions made by Mr Velissaris in support of this application for joinder of Sigma's directors are remarkably similar to the allegations before Judge Bowman, including the relevant paragraphs in Mr Velissaris' affidavit of 5 April 2006, when Judge Bowman dismissed the earlier application for joinder in Maryvell Investments PL v Sigma Constructions PL[2006] VCAT 743. In dismissing the application for joinder his Honour summarised what he understood to be Maryvell's claims against Sigma's directors:
(a) As previously stated, at least part of the Further Amended Points of Claim, however expressed, are based upon the existence of a guarantee not reduced to writing. The same defence pursuant to s.126 of the Instruments Act1958 is available as was previously successful - see my reasons of 26th April last.
[18]
(b) In relation to those paragraphs of the document which express reliance upon the Fair Trading Act 1999, the alleged breaches relate not to liability or loss and damage but to execution. What Maryvell is in fact alleging is this. The directors told Maryvell that Sigma was a company of substance and would be able to make good any loss or damage suffered by Maryvell. Relying upon this, Maryvell entered into the licence agreement. Sigma is not a company of substance. Therefore, if Maryvell succeeds against Sigma, a judgment in its favour may not be able to be satisfied. This seems to me to strongly resemble "putting the cart before the horse", to adopt the terminology of Mr Aizen. Firstly, Maryvell must succeed against Sigma on the question of liability. Secondly, it must establish that it has suffered loss and damage. Then, and only then, when the case is over and there is a judgment against Sigma, could its financial status become relevant. Even at that stage, it is then to be determined whether or not Sigma can satisfy any judgment debt. If it can, there is no necessity to take any proceedings against its directors regardless of what they may or may not have said.
[19]
In summary, I struggle to see that the financial position of Sigma or representations made concerning it by its directors are of sufficient relevance to a claim based either in tort or in contract by Maryvell against Sigma to justify the exercise of any discretion in favour of Maryvell by joining those directors as parties.
[20]
(c) The proposed Further Amended Points of Claim, insofar as they relate to joinder also are at least in part vaguely expressed, if not confusing. Paragraph 9A(b) reads as follows:-
[21]
"Prior to entering into the licence agreement, the third and fourth Respondents represented to the Applicant that -
[22]
(b) Sigma was a substantial company which owned assets and, in particular, real property, and would, in any event, be able to stand behind the licence agreement and make good any loss or damage suffered by the Applicant."
[23]
Whilst, as stated several times, this is not a court of pleadings, nevertheless this proceeding is moderately complex, involving, potentially, a large amount of money. The phrase "be able to stand behind the licence agreement" is scarcely a precise description of the alleged representation. Certainly, if it is meant to be a legal assertion advanced on behalf of Maryvell by the solicitors who have lent their name to the document, it is comparatively meaningless.
[24]
Furthermore, the allegations in paragraph 9C(a) can only be seen as referring back to paragraph 9A(a) - that is, to a guarantee. Paragraph 9C(b) asserts that Sigma is not a substantial company which owned assets and again uses the vague phrase "was unable to stand behind the licence agreement or make good loss and damage". In addition, this sub-paragraph is expressed in the past tense as if demand pursuant to a judgment has already been made and that the judgment has not been satisfied. Paragraph 9D refers to "representations", in the plural, and therefore, presumably, this also embraces reliance upon a guarantee, whilst purportedly relying only upon s.9 of the Fair Trading Act. Paragraph 9E, whilst referring to reliance upon s.4(1) of the Fair Trading Act, specifically refers back to paragraph 9A(a), the sub-paragraph which places ostensible reliance upon the existence of a guarantee.
[25]
The material filed by Mr Velissaris in support of this joinder application does not include any new material and does not demonstrate a legal basis for any claims he wishes to make against the directors.
It seems from the material he has filed, and the oral submissions he made at the directions hearing, that he wants to join Sigma's directors because he believes Sigma does not have any assets and therefore would not be able to satisfy any judgement which might be made against it. On 5 May 2010 Mr Velissaris filed an affidavit sworn on 3 May 2010 in which he relevantly stated:
DUE to the Long Delays in the Cases Run at VCAT AND THE SIGMAS APPEAL TO THE SUPREME COURT (Which Took Some 18 Months To Come To The Hearing & The Order for Eviction Of SIGMA From Our Site Was OF NO BENEFIT TO ME AT ALL) CAUSED A LOT OF LEGAL COSTS TO A LOT OF CROOKED SOLICITORS, AND ONE OF THEM (A REAL THIEF AND A CROOK) MANAGED TO SEND MY TRUSTEE COMPANY (Maryvell Investments Pty Ltd) In Liquidation For His Extra Big Legal Costs Which Was not Entitled and As We have Paid Him What We Have Agreed Upon) But He Sued For More an I Was Sick After a Heart Attack and Could Not Defend Myself and My Trustee Company and The Co Went Into Liquidation.
[26]
I Have Done Searches At the Titles Office To Find Out if "SIGMA" Has Any Property Assets, AND IT CLEARLY SHOWS THAT SIGMA HAS NO PROPERTY ASSETS AT ALL, ON ITS NAME AND SO IT WILL BE A FUTILE EXCERSIZE AND LOST CAUSE FOR ME TO PERSUE A COMPANY WHICH IS AN EMPTY DEAD SHEL, AND THAT IS WHY I MUST BE GIVEN LEAVE FROM THIS HONOURABLE TRIBUNAL TO JOIN THE DIRECTORS OF "SIGMA" IN THOSE PROCEEDINDS & WHO HAVE PROPERTY ASSETS ON THEIR NAME AND SO TO BE ABLE TO RECOVER MY VERY BIG LOSSE AND DAMAGES, AND THE CATASTROPHY I HAVE SUFFERED BY THEIR LEGALLY WRONG ACTIONS TOWARDS ME AND MY FAMILY. (sic)
In his fax of 16 May 2010 he writes (in a mixture of upper and lower case):
[27]
...Due to Sigma Constructions P/L damages to the sewer lines and to the destruction of my 'Greek bar Tavern' business and the very big loss of profits and loss of goodwill ... that is why I have applied to join myself as the plaintiff and the directors of Sigma as the defendants, and to so be able to get the big loss and damages I have suffered and as Sigma is worth nothing as not having any assets.
[28]
The tribunal is a creature of statute. It can only hear and determine cases where applications are made under one of the enabling enactments, and where a claim is based on a cause of action known to law. The tribunal does not have jurisdiction to consider any claims Mr Velissaris has in relation to the liquidator's conduct - these are matters which have been unsuccessfully ventilated in various Courts, where the jurisdiction to consider them lies, on a number of occasions. They cannot be re-ventilated in the tribunal.
I am not persuaded that there is any legal basis for any of the applications made by Mr Velissaris and they will be dismissed.
I will reserve the question of costs with liberty to apply.