Papoutsakis v Prime Capital Securities Pty Ltd

SUBMISSIONS 9 Mr Papoutsakis objects to the Trustee having any involvement in the appeal on the following grounds. 10 First, he contends that the Trustee is not the party responsible for his bankruptcy. 11 Second, he submits that the Trustee's involvement will not be of any assistance to the Court as the Trustee was appointed after the date of Mr Papoutsakis' bankruptcy and has no prior knowledge or information of the matters that led to his bankruptcy. 12 Third, he submits that he has made requests of the Trustee to look behind the judgment on which the sequestration order was made and take appropriate action to recover debts owning to him, but the Trustee has declined to do so. 13 Further, he submits that if his bankruptcy were to be annulled, no prejudice would be caused to creditors as the Trustee does not wish to pay any creditors despite having funds to do so. I interpolate at this stage that there is no evidence on which I am satisfied that such an allegation or submission has any substance. The position, of course, may change in the event that further evidence is led and admitted into evidence. 14 Finally, Mr Papoutsakis submits that any intervention by the Trustee will only serve to cause prejudice to his application for leave for an extension of time in which to file his appeal and any subsequent determination of his appeal from the decision of the primary judge. 15 The Trustee, for whom Mr Groves appeared today, submits that the weight of authority of both this Court and the Federal Magistrates Court (as it then was) is that the involvement of a trustee is, at least, of assistance to the Court in the context of applications by a bankrupt for an annulment of a bankruptcy. 16 Mr Groves pointed to judgments of the Federal Magistrates Court in Drake & Anor v Jones [2009] FMCA 298 at [110], Symes v Holbrook (No 3) [2004] FMCA 71 at [4], [5] and [14], Yi v Chan & Li Trading Pty Ltd [2003] FMCA 95 at [7] and to the decision of the Full Court of this Court in Maas v Maas & Anor [1998] FCA 1447, in particular at 10 to11, in which the Full Court cited an observation of French J, as he then was, in Re Hatcher, K.L. [1987] FCA 608 in these terms at 5: In my opinion the report initially filed by the trustee did not meet minimum requirements of particularity. That deficiency was exacerbated by the trustee's failure to appear in person or by counsel on the first hearing of the application in this court. Instead he sent an employee of the firm of chartered accountants of which he is a member to appear in his stead. … At the critical point in the administration of an estate where the bankrupt applies for the discharge or annulment, it is the trustee himself or properly instructed counsel who should appear.

CONSIDERATION 17 I am satisfied in this case that it is appropriate for the Trustee to appear in this appeal to assist the Court, that the order sought by Mr Papoutsakis should not be made, and that the Trustee should be provided with access to all documents in respect of the appeal. 18 In further support of that conclusion, I note that Mr Papoutsakis is self-represented, there is no proper contradictor and that Mr Papoutsakis is, by reason of his lack of experience, not in a position to provide the assistance to the Court as to the factual context and background that might be expected of a party who was able to obtain legal representation. 19 I also note that it would appear from the email of 9 August 2022 that the respondent will not be appearing as a party to the appeal if leave is otherwise granted to extend the time for filing of the foreshadowed notice of appeal. Further, I note, as I have indicated earlier, that the Trustee appeared before the primary judge, and made submissions, and provided assistance to him, and I see no reason why the Trustee should not be given a similar opportunity to do so before me. 20 Finally, I am not satisfied on the evidence before me that there is any overriding concern that the Trustee has been acting in a manner that would preclude or otherwise disqualify him from being in a position to assist the Court in considering, in particular, the interests of creditors, the status of the administration of the bankruptcy, in particular, the consequences to the bankruptcy and the position of creditors if the bankruptcy of Mr Papoutsakis was annulled.

DISPOSITION 21 For those reasons, the Interlocutory Application is to be dismissed, and Mr Papoutsakis is to pay the costs of the Trustee. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.