Tsekouras v Olsen

REASONS FOR JUDGMENT 1 The first order sought by Mr Tsekouras in his application filed on 8 December 2008 is: 'The Applicant seeks a Third Party Claim as this bankruptcy should never have been instigated by Peter Olsen on behalf of the Insolvency and Trustee Service Australia'. The bankruptcy to which the application refers arises from a sequestration order made against Mr Tsekouras' estate on 14 June 2000 by an order of Hely J on the application of Mr Tsekouras' former solicitor, Ms Evangelinidis ('the sequestration order'). 2 The application then contains a number of assertions and, in particular, an assertion that 'at the time of the proceedings' Mr Tsekouras had paid the sum of $247,705.24 and that in November 1999 he paid further monies in an amount of $166,469.54. Mr Tsekouras claims that he has paid all monies owed by him and seeks compensation including 'compensation for the inconvenience of being declared bankrupt'. He says that the monies paid out of his bankrupt estate have, in effect, been paid twice. 3 The respondent, Mr Olsen, is the Assistant Official Receiver of Insolvency and Trustee Service Australia. Mr Olsen points out that all dealings between himself and Mr Tsekouras were in his capacity as an employee and subject to the responsibility of the Official Trustee in Bankruptcy ('the Official Trustee') for the administration of Mr Tsekouras' bankrupt estate between 14 June 2000 and 21 August 2003. He says that he is not liable in respect of any decisions of the Official Trustee regarding the administration of the estate. Mr Olsen was not involved in any way in the proceedings in which the sequestration order was made. 4 Mr Olsen has filed a notice of motion seeking, inter alia, summary judgment or dismissal of the proceedings with costs under s 31A of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act'). Mr Olsen also seeks an order in the notice of motion joining the Official Trustee who, he says, is the appropriate respondent. However, he does not press for any such order at this stage. In addition, by cross-claim, Mr Olsen seeks orders pursuant to O 21 r 1 of the Federal Court Rules that Mr Tsekouras: (a) not continue any proceeding without leave of the Court; and (b) not institute a proceeding without leave of the Court. 5 In the alternative, Mr Olsen seeks an order pursuant to O 21 r 2 of the Federal Court Rules that Mr Tsekouras not institute or continue any proceedings against Mr Olsen or the Official Trustee without leave of the Court.