Nejad v Vouris [1999] FCA 347

FEDERAL COURT OF AUSTRALIA

Nejad v Vouris [1999] FCA 347

FRANK M NEJAD v JOHN VOURIS

NG 1443 OF 1998

JUDGES: BEAUMONT, FINN & HELY JJ. DATE: 30 MARCH 1999 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1443 OF 1998

BETWEEN: FRANK M NEJAD

Applicant

AND: JOHN VOURIS

Respondent

JUDGES: BEAUMONT, FINN & HELY JJ

DATE OF ORDER: 30 MARCH 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1443 OF 1998

BETWEEN: FRANK M NEJAD

Applicant

AND: JOHN VOURIS

Respondent

JUDGES: BEAUMONT, FINN & HELY JJ

DATE: 30 MARCH 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT & FINN JJ.

1 We have had the benefit of reading the reasons for judgment of Hely J and agree with those reasons. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of their Honours Justice Beaumont and Justice Finn.

Associate: Dated: 30 March 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1443 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT

BETWEEN: FRANK M NEJAD

Appellant

AND: JOHN VOURIS

Respondent

JUDGES: BEAUMONT, FINN & HELY JJ

DATE: 30 MARCH 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT HELY J: 2 On 11 December 1998 an order was made for the sequestration of the appellant's estate on the petition of a creditor, Mr John Vouris. 3 The Creditor's Petition was founded on a bankruptcy notice served on the appellant on 11 February 1998 claiming payment of $14,500. That debt was based upon an order made by Einfeld J in proceedings NG 3185 of 1995 on 28 February 1996, to the effect that Sanirise Pty Ltd, Christine Kelly and the appellant should pay the respondent's costs of those proceedings. The respondent to those proceedings is John Vouris. 4 Those costs were taxed at $14,500 and on 26 November 1997 an order for the payment of those costs was entered. 5 Proceedings NG 3185 of 1995 began as an application in which Sanirise Pty Ltd was named as applicant and Court & Co was named as respondent. The trial judge details the subsequent history of the proceedings in his reasons for decision, and explains how it is that the proceedings were ultimately constituted as a claim by Sanirise Pty Ltd as first applicant, Christine Kelly and Frank Nejad, as second applicants against John Vouris as respondent. 6 The Notice of Appeal includes as the sole ground of appeal an assertion that the respondent to the proceedings was Court & Co, as distinct from Mr Vouris, and any change in that position was "not legal". 7 But, on 5 July 1994 Mr Vouris was appointed Administrator of Sanirise Pty Ltd. The Amended Application and Statement of Claim filed on 29 June 1995 sought an order, on the application of amongst others, the appellant, for the removal of Mr Vouris as administrator. Mr Vouris was thus a necessary and proper person to be joined as respondent to the proceedings. 8 The transcript of the proceedings before Einfeld J on 30 June 1995 confirms that the name of the respondent was changed to John Vouris, in the Amended Application pursuant to a direction of the Court. The costs order made by Einfeld J on 28 February 1996 was in relation to the Amended Application and Amended Statement of Claim, rather than in relation to the proceedings as originally constituted. 9 In his reasons for decision given on 28 February 1996 Einfeld J said: "For those reasons it is my decision that the proceedings by Sanirise Pty Ltd and the two individual applicants, Kelly and Nejad, against John Vouris should be dismissed with costs, including any costs reserved on previous occasions." His Honour's intention was clear, and is reflected in the orders subsequently entered, namely that John Vouris' costs in proceedings NG 3185 of 1995 should be paid by Sanirise Pty Ltd, Kelly and Nejad. That creates a joint and several liability for the payment of the costs: Re Bowen Ex Parte v The Australian Workers Union & Ors (1945) 13 ABC 275 at 278; (1945-6) 72 CLR 575 at 583, 584, 591. 10 No appeal was lodged against his Honour's decision, nor was an application for leave to appeal filed. As a result of his Honour's decision and the subsequent taxation of the costs ordered to be paid, the appellant became jointly and severally indebted to the respondent in the sum of $14,500. That was a liquidated sum due at law and payable (at least after 26 November 1997 when the order for payment was entered) immediately. Thus the conditions specified in s 44(1)(a) and (b) of the Bankruptcy Act 1966 were satisfied.