Yushkova v Cook

BACKGROUND 1 On 13 July 2016, a sequestration order was made against Mr Jerome King. 2 On 16 September 2019, Mr Brett Harrison, the trustee of the bankrupt estate of Mr Jerome King (trustee), applied to the Court for declarations that Jeremy David Allen King was an alias for Jerome King and that Jerome King had a legal and beneficial interest in a property described as Lot 801 on Registered Plan 162672 with title reference 15771110 situated at 13 Bairnsdale Court, Helensvale in the State of Queensland (the Helensvale property), which was registered to Jeremy David Allen King and Ms Larisa Ivanovna Yushkova as joint tenants. 3 Orders were also sought that the interest of Jeremy David Allen King in the Helensvale property be transferred to the trustee and that the Helensvale property be vacated, sold and the sale proceeds distributed, with Ms Yushkova at liberty to purchase the property, with her share in the property set-off against the purchase price (the primary proceedings). 4 The primary proceedings were heard before Judge Jarrett (as he then was) of the Federal Circuit Court of Australia (as it then was before joining with the Family Court of Australia to form the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA)) on 3 September 2020. The application before his Honour on 3 September 2020 was an application for default judgment or, in the alternative, an application for summary judgment. 5 Jeremy David Allen King appeared at the hearing by telephone, but did not file any evidence. Ms Yushkova did not appear and did not file any evidence. 6 On 4 February 2021, Judge Jarrett handed down reasons in Harrison (Trustee) v King (Bankrupt) [2021] FCCA 185 (Judge Jarrett's first decision). Default judgment was entered against Mr King and Ms Yushkova on 4 February 2021. Judge Jarrett was satisfied that each was in default by not having defended the proceedings with due diligence, had not complied with orders and had not filed a response as required under the Federal Circuit Court Rules 2001 (Cth). Judge Jarrett also entered summary judgment. The orders and declarations sought by the trustee were made. Judge Jarrett also ruled that Jeremy David Allen King was an alias of Jerome King and that they were the same person. No appeal has been made against that decision. 7 On 24 February 2021, Ms Yushkova, through her solicitors, filed an application to set aside Judge Jarret's first decision, insofar as it concerned Ms Yushkova and the Helensvale property, on the basis that she had not been served. Ms Yushkova also sought a readjustment of her beneficial ownership in the property, contending that she was the beneficial owner of the property in its entirety. 8 Judge Jarrett was not satisfied that Ms Yushkova was served with the proceedings. On 26 August 2021, Judge Jarrett made a decision in relation to Ms Yushkova's application and handed down reasons (Harrison (Trustee) v King (Bankrupt) (No 2) [2021] FCCA 2015) (Judge Jarrett's second decision). 9 Judge Jarrett made the following orders on 26 August 2021: 1. The judgment entered on 4 February, 2021 against [Ms Yushkova] be set aside. 2. Until the determination of the proceedings as between [the trustee of the bankrupt estate of Jerome King] and [Ms Yushkova] or earlier order, the appointment of statutory trustees in paragraph 4 of the orders made on 4 February, 2021 be stayed. 3. By 22 September, 2021 [Ms Yushkova] shall file any further affidavit material upon [which] she intends to rely on at the hearing of the matter. 4. By 6 October, 2021 [the trustee of the bankrupt estate of Jerome King] is to file [any] further affidavit material that he intends to rely on at the hearing of the matter. 5. By 20 October, 2021 [Ms Yushkova] is to file her outline of submissions. 6. By 3 November, 2021 [the trustee of the bankrupt estate of Jerome King] is to file his outline of submissions. 7. The [parties'] costs of and incidental to the application in a case filed 24 February, 2021 be reserved to the trial judge. 8. The matter is to be listed for a review on 12 November, 2021. (errors in original) 10 The order made in Judge Jarrett's second decision did not interfere in any way with the judgment which had been entered against Mr King. 11 Pursuant to the orders made in Judge Jarrett's second decision, the matter was relisted before Judge Vasta for hearing. 12 On 18 February 2022, Mr Paul Cook and Mr Adam Johnston were appointed as joint trustees of the bankrupt estate of Jerome King (joint trustees) and were subsequently added to the proceedings by orders of Judge Vasta. 13 On 28 July 2022, Judge Vasta heard the proceedings. Ms Yushkova was represented by counsel at the hearing. Ms Yushkova and Mr King each gave evidence (and were cross-examined). 14 Mr King did not participate in those proceedings except by giving evidence (called by counsel appearing on behalf of Ms Yushkova). 15 Judge Vasta delivered reasons ex tempore (Cook (Trustee), in the matter of King v King [2022] FedCFamC2G 817) (Judge Vasta's first decision) and ruled that the joint trustees had an equitable interest to the extent of 37.32% of the Helensvale property. Judge Vasta made orders lifting the stay of Judge Jarrett's second decision and made declarations in the terms of Judge Jarrett's first decision. The parties were to file and serve written submissions in relation to the question of costs and as to the form of orders. 16 On 13 October 2022, Judge Vasta handed down judgment on the question of costs and as to the form of orders (Cook (Trustee), in the matter of King v King (No.2) [2022] FedCFamC2G 838) (Judge Vasta's second decision). 17 On 4 November 2022, a notice of appeal was filed in this Court, apparently appealing from Judge Vasta's second decision. The notice of appeal referred to facts which were determined in Judge Vasta's first decision. It is accepted by the parties that the appeal relates to both decisions of Judge Vasta. 18 This notice of appeal: (a) is an appeal from "all Orders of the Federal Circuit and Family Court of Australia, given on 13th October 2022 at Brisbane", which was Judge Vasta's second decision; (b) lists the appellants as being Larisa Ivanovna Yushkova and Jeremy David Allen King; (c) is footnoted as being prepared by Jeremy King; (d) was signed by both Jeremy King and Larisa Yushkova on 4 November 2022; and (e) sets out the grounds as follows: 1. I, Larisa Yushkova, am appealing all the Orders, as the Judge did not take into account at the hearing or in the Orders given, the finding of facts: a. Whether I hold a Resulting Trust over the subject property, 13 Bairnsdale Court, Helensvale, Gold Coast, and b. Whether the Trustee has constitutional legal right in law to take their fees for a bankrupt person from a non-bankrupt, what as is determined in the Court Order. 2. I, Larisa Yushkova, am also appealing the Court Order on the grounds that I require to be returned my full verified deposit that I personally paid in the purchase of the subject property. This was not determined by the Judge. It is repugnant if I am not returned this deposit, and this amount is paid to the Trustees on their account of a bankrupt person. 3. Also, penalty to be awarded against the Trustee for not allowing the subject property to be rented for an extended period of time, especially when mortgage payments needed to be paid to Westpac Bank. Also for the accounting of a relatively small amounts of rents received by the Trustees. Again, this was not determined by the Judge. 4. Where in Clauses 24, 28, 29, 32, 36, 38 and 46 the Judge states I am dishonest and attempting to perpetrate a fraud upon the Court, and as in Clause 44 states, "I travel to Russia on a semi-regular basis", indicating the Judge is anti-Russian, and as such endeavours to arrest assets of such Russian citizens, including myself. 5. I was never dishonest in the Court hearing, answering all questions truthfully. All my evidence is factually backed up by exhibits. It is repugnant that I am labelled dishonest, and this is Court discrimination in Australia against Russians. This has to be addressed. (errors in original) 19 Whilst the notice of appeal does conflate whether it relates to the first Judge Vasta decision or the second Judge Vasta decision, it is clear that it is not an appeal from Judge Jarrett's first decision. 20 The appeal was out of time with respect to Judge Vasta's first decision, but within time with respect to Judge Vasta's second decision. The joint trustees have indicated that, insofar as Ms Yushkova is concerned, the joint trustees have no issue with the timing of the filing of the notice of appeal. 21 No such concession is made with respect to any appeal by Mr King. 22 An application for a stay of the sale of the Helensvale property pending the appeal from Judge Vasta's second decision was filed on 15 December 2022. 23 The matter was heard by Derrington J and reasons were published on 10 February 2023 (Yushkova v Cook (Trustee) in the matter of the bankrupt estate of King [2023] FCA 77). 24 Derrington J recorded in his reasons that Ms Yushkova, the second respondent in the proceedings before Judge Vasta, "claims to be entitled to the entire beneficial interest in [the Helensvale] property and seeks to prevent its sale pending the determination of an appeal from the first instance orders" (at [1]). 25 From the reasons, it is clear that the claim was asserted as being one by Ms Yushkova. Derrington J's conclusions were: 40 Ms Yushkova's application for a stay of the orders of the primary judge of 13 October 2022 must be dismissed. 41 Ms Yushkova must pay the costs of the bankruptcy trustees. 26 Following the filing of the notice of appeal, the joint trustees filed a Notice of Objection to Competency on the following grounds: 1. The appeal filed by the appellants does not raise any valid grounds of appeal and it does not identify any error of law. 2. The appellant, Jeremy King, does not have standing to file the appeal by reason [of] him being an undischarged bankrupt and he has filed the appeal out of time. 27 That Notice of Objection to Competency was filed out of time on 24 January 2023. In the Notice, the joint trustees applied for the question of competency to be heard and determined before the hearing of the appeal. 28 In later submissions, the joint trustees also submitted that Mr King had no standing to appeal for other reasons. 29 On 27 January 2023, Ms Yushkova filed a response to the Notice of Objection to Competency. Included in the grounds is the following: 6. Jeremy King has standing in the Appeal as he has knowledge in the purchase of the property by me and in our non-relationship. 30 Mr King did not respond. 31 Ms Yushkova filed submissions in the appeal on 14 March 2023. The joint trustees filed submissions in response on 28 March 2023. Submissions in reply were filed by Ms Yushkova on 31 March 2023. 32 Mr King did not file any submissions. 33 The hearing of the appeal from the orders made by Judge Vasta was listed to take place on 24 April 2023 before Derrington J. 34 When appearances were taken, and Mr King was asked whether he was a party to the appeal, he responded in the affirmative. In answer to a question from Derrington J, counsel appearing for the joint trustees indicated: [I]t has been uncertain, to be honest, as to whether or not Mr King has been a party to this appeal. All of the submissions that have been filed to date have been done through Ms Yushkova herself, personally. … There has been nothing as far as Mr King goes. 35 In the course of that hearing, Mr King said the following, when responding to a comment from Derrington J regarding whether an appeal by him would be within time: But it's not really necessary that it is, because it's Larisa's house. I'm not appealing. I don't get anything at all. … So it's really Larisa's appeal. 36 In relation to his understanding, Mr King said: The only thing is, this court case is here which says in it it's the intention of both parties who are on the title, and therefore the court have to get my intention, therefore I have to appear. (errors in original) 37 On 24 April 2023, Derrington J recused himself from hearing the matter. Derrington J made directions orders leading to the hearing of the adjourned appeal. 38 On 7 June 2023, an affidavit by Mr King sworn on 7 June 2023 annexing an appeal submission by Mr King was lodged. 39 Then on 15 June 2023, Mr King sent an email to the registry attaching an affidavit sworn on 15 June 2023 which annexed amended appeal submissions. 40 On 16 June 2023, an affidavit of Ms Yushkova sworn on 15 June 2023 was lodged. The affidavit annexed an appeal submission by Ms Yushkova. 41 A case management hearing was listed before me on 7 July 2023. Due to technical difficulties with Microsoft Teams, the case management hearing was adjourned to Wednesday, 12 July 2023. 42 On 10 July 2023, the solicitors for the joint trustees communicated by letter (sent by email) to Mr King and Ms Yushkova. 43 The letter referred to an application which was lodged on 5 May 2023 concerning an extension of time for the filing of the Notice of Objection to Competency to 23 January 2023, the date the Notice was filed and served. 44 The letter recorded the position of the joint trustees: that the appeal lodged against the decisions of Judge Vasta had failed to raise any valid grounds for appeal or identified any error of law (point 1 in the Notice of Objection to Competency); and that Mr King had no standing to be an appellant in the appeal proceedings (point 2 in the Notice of Objection to Competency). 45 The letter required that: 1. Mr King writes to [the solicitors'] office … confirming that he is not an appellant to [the] appeal proceedings and withdraws his submissions … by 12:00pm Tuesday, 11 July 2023. 2. Ms Yushkova admits the appeal's lack of competency and files a Notice of Discontinuance … by 12:00pm Tuesday, 11 July 2023. (emphasis omitted) 46 The letter warned that, failing compliance, Mr King and Ms Yushkova were placed on notice that the joint trustees intended to seek to have the application filed and heard at the case management hearing listed for 12 July 2023. 47 When the matter came before me on 12 July 2023, counsel for the joint trustees sought a determination with respect to the Notice of Objection to Competency, insofar as it dealt with the claim by Mr King.

At a glance

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Judgment (5 paragraphs)

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Legislation Cited (3)

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Cited By (2)