Tsekouros v Evangelinidis

REASONS FOR JUDGMENT GOLDBERG J: 3 The appellant appeals against a sequestration order made by a judge of the Court on 14 June 2000, against the estate of the appellant. The appellant filed a notice of appeal on 20 June 2000 setting out the following grounds of appeal: "(a) In relation to the conduct the Respondent charged the Appellant $73,251.84. (b) Bill of costs for $93,217.70. (c) That assessment is the basis of the judgment. (d) In relation to the original proceedings (the MVA) the Appellant claims (i) The Respondent was negligent and that claim in being litigated by and by seeking leave to appeal. (ii) In any event, I have paid more that what she claims is owed. (e) On November 1999, the Appellant paid $166,469.54. Annexed is a true copy of the receipt/documentation showing payment. (f) Therefore the Appellant says that the debt claimed is not owed. (g) Further, if my appeal pertaining to negligence is successful, there will be an offsetting claim as yet undetermined, which may be greater than the amount of the judgment." 4 The sequestration order was made against the estate of the appellant as a result of a costs order obtained against him by the respondent, his former solicitor, in a proceeding in the District Court. 5 The appellant, represented by the respondent, had instituted proceedings in the Supreme Court of New South Wales for damages for personal injuries which he suffered in a motor vehicle accident. The appellant recovered damages in the proceedings in 1987. The appellant was dissatisfied with the amount of the award and appealed to the Court of Appeal. The primary judge found that the appeal was substantially unsuccessful because the Court of Appeal only slightly increased the judgment sum. 6 The appellant commenced a proceeding against the respondent in the Supreme Court of New South Wales for negligence in the conduct of his damages claim. The proceeding was transferred to the District Court and on 15 February 1999 the Court entered a judgment in favour of the respondent on the basis that she had not been guilty of any negligence in the conduct of the Supreme Court proceeding. Leave to appeal to the Court of Appeal against that judgment was refused on 11 October 1999. 7 On 14 October 1999 the respondent obtained a judgment in the District Court against the appellant for $73,251.84 representing the legal costs of the negligence proceeding in the District Court. On 1 November 1999 the respondent issued a bankruptcy notice based upon that judgment which was served on the appellant. A Registrar refused to set aside the bankruptcy notice. The Registrar's decision was confirmed by Gyles J on 8 February 2000. 8 The primary judge found that the respondent had a prima facie entitlement to a sequestration order against the estate of the appellant. The appellant's ground of opposition to the order was stated to be a claim of $166,469.54 against the respondent which exceeded her claim by $93,217.00. 9 The only ground upon which the appellant challenged the making of the sequestration order was that he had a claim against the respondent which exceeded the amount of her claim against him. The basis of the appellant's claim appears to be as follows. He had paid amounts totalling $244,895.52. He then contended that the respondent had not paid certain amounts which she was obliged to pay on his behalf and that those amounts overlapped, or formed part of, the amounts totalling $244,895.52 that he had paid. As a result of the alleged "double payments" the appellant claimed the respondent is liable to him for the amounts "double paid". 10 The appellant placed before the primary judge a list of about twenty‑four payments made principally to lawyers, which were said to constitute the sum claimed by the appellant. The primary judge observed that it was immaterial whether those payments had been made by the appellant unless the circumstances in which they were made gave rise to a corresponding liability on the respondent to the appellant. The primary judge found that there was "simply no evidence" before him which established the existence of any liability in the respondent to the appellant for any of the sums comprised in the $244,895.52. His Honour considered the payments claimed by the appellant and concluded that they included sums that might have been recoverable against the respondent by the applicant had he succeeded in his negligence claim but as he had failed there was no warrant for any inference that the respondent was under any liability to the appellant in relation to any of those sums. Indeed, his Honour was satisfied that the evidence established that by reason of the appellant's failure in the District Court proceedings there could be no such liability. 11 His Honour then looked at the remainder of the amounts claimed by the appellant and found that there was no basis for any conclusion that the respondent was under any liability to the appellant in relation to any of the sums. In effect his Honour's findings were that there was no evidence that would justify a finding that there was any "double payment" of the same debt. 12 There was only one sum in respect of which his Honour was under some degree of uncertainty. This related to an amount of $17,000 in respect of which the appellant's evidence was uncertain. His Honour found that in an affidavit sworn by the appellant on 8 June 2000 he appeared to assert that it was a sum of money which he had paid whereas in a letter which was signed by the appellant and tendered by counsel for the respondent the appellant referred to the amount as a payment from the Government Insurance Office to pay his bills which had not been paid. His Honour concluded that he was not satisfied on the evidence that it reflected a liability of the respondent to the appellant but he refrained from making any specific finding with respect to that sum. 13 His Honour's conclusion was that, subject to the possible exception of the sum of $17,000, he was satisfied that the appellant had not made out a case for any liability in the respondent for the sum to which he had referred. Although he was not satisfied in a positive sense that the appellant had made out a case in relation to the sum of $17,000 he concluded that, assuming that a case could be made out in respect of it, it would not be sufficient to disentitle the respondent from her prima facie entitlement to a sequestration order. 14 The appellant filed a written summary of argument which did not disclose any question of law nor did it make any submissions in relation to any matter which might be regarded as directed to an error of law by the primary judge in his reasoning. The matters raised by the appellant in his written summary, and in his oral submissions, were directed to the issues of the amount of damages to which he was entitled in his Supreme Court proceeding; and his claim that the respondent was negligent in the conduct of that proceeding. The claim that the respondent had been guilty of negligence was conclusively determined against the appellant in the District Court proceeding and the primary judge did not err in the manner in which he considered the evidence before him. 15 In his oral submissions, the appellant submitted that he had paid all his expenses in relation to the car accident but he was not able to refer to evidence before the Court that explained why that gave him a right to claim those payments from the respondent. Save for his set‑off claim he did not dispute that he was liable to pay the costs ordered against him in the District Court. The appellant was not able to point to any evidence or material which suggested any error of fact or law was made by the primary judge. 16 I am satisfied that the primary judge made no error in the manner in which he approached the proceeding before him. I am satisfied that after carefully considering the appellant's evidence and submissions it was plainly open for the primary judge to find that there was no sufficient cause why a sequestration order should not be made: s 52(2)(b) of the Bankruptcy Act 1966 (Cth), and I am satisfied that he did not err in that respect. 17 The appellant sought leave to rely upon an affidavit sworn 14 August 2000. It was of no assistance in relation to the issues raised by the appeal. 18 In my view the appeal should be dismissed.