FEDERAL COURT OF AUSTRALIA Dimitriou v Curtis [2012] FCA 1347 Citation: Dimitriou v Curtis [2012] FCA 1347 Appeal from: Paul Anthony Curtis v Georgina Dimitriou [2012] FCA 604 Parties: GEORGINA DIMITRIOU v PAUL ANTHONY CURTIS File number: NSD 1643 of 2012 Judge: RARES J Date of judgment: 16 November 2012 Legislation: Federal Court Rules 2011 (Cth) r 4.12 Legal Profession Act 2004 (NSW) s 368(5) Cases cited: Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 applied Rigg v Baker (2006) 155 FCR 531 referred to Date of hearing: 16 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 9 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr D English Solicitor for the Respondent: Colin Biggers & Paisley IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1643 of 2012 BETWEEN: GEORGINA DIMITRIOU Applicant AND: PAUL ANTHONY CURTIS Respondent JUDGE: RARES J DATE OF ORDER: 16 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant be referred to a lawyer for legal assistance in accordance with r 4.12 of the Federal Court Rules 2011 (Cth) for the purposes of advising the applicant on whether she has an arguable appeal on the issue of whether, at the time of the making of the sequestration order, on the evidence before the primary judge, she was solvent, for the purpose of preparing and allowing the applicant to file and serve an affidavit as to the material before the primary judge on that issue, and attaching the proposed notice of appeal. 2. Any affidavit of the applicant in relation to the subject matter of the referral be filed and served on or before 14 December 2012 3. The proceedings stand over to 21 December 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1643 of 2012 BETWEEN: GEORGINA DIMITRIOU Applicant AND: PAUL ANTHONY CURTIS Respondent JUDGE: RARES J DATE: 16 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an application for an extension of time, in which to file a notice of appeal. The applicant, Georgina Dimitriou, had a sequestration order made against her by the primary judge on 30 May 2012. The application for extension of time was only filed on 24 October 2012. The proceedings before the primary judge 2 The petitioning creditors were a firm of solicitors. Their debt was for about $35,000. It was based on a certificate setting out a determination of a costs assessment. The certificate had the effect of a judgment, in the amount certified, of the Supreme Court of New South Wales pursuant to s 368(5) of the Legal Profession Act 2004 (NSW), once the petitioning creditor filed the certificate in that Court. The unpaid judgment sum, recorded in the certificate, was the debt on which the bankruptcy notice was based. 3 Ms Dimitriou claimed to have had a right of action against the petitioning creditors, so she asserted, worth about $1.8 million. The primary judge referred to that claim in his reasons. It formed part of Ms Dimitriou's assets that she said were worth approximately $4.4 million. Those assets also, allegedly included another cause of action in the Industrial Relations Court which Ms Dimitriou valued at about $487,000. Leaving aside her estimates of the value of those two causes of action, Ms Dimitriou would have had about $1.7 million in net assets. His Honour did note that Ms Dimitriou had set out some liabilities, which he said were confined mainly to mortgages over three properties in her name. 4 Ms Dimitriou contended before his Honour that she was solvent but recalcitrant. However, his Honour did not examine, in his reasons, what Ms Dimitriou's financial position was beyond recording her assertions. He stated that "the only question for the Court to determine is whether the debtor can pay her debts as they fall due". 5 His Honour then examined Ms Dimitriou's failure to pay or take steps to challenge the costs assessment. The primary judge referred to Rigg v Baker (2006) 155 FCR 531. There, the Full Court held that a debtor was not entitled to resist the making of a sequestration order, simply because the debtor had begun an appeal against a decision founding the judgment debt the subject of bankruptcy notice. The primary judge concluded that a sequestration order ought be made against Ms Dimitriou because the final judgment, based on the certificate of costs assessment, had not been challenged. He held that therefore, Ms Dimitriou's intended proceedings against her petitioning creditors were not a sufficient reason to negate their prima facie entitlement to a sequestration order. Ms Dimitrou's explanation for her delay 6 Ms Dimitriou was represented by counsel before the primary judge. Ms Dimitriou's explanation for her delay was that she had been seriously ill since June 2010, having suffered a number of medical conditions, including blood clots in both lungs, pseudomonas in both lungs, pneumonia, a heart attack and chronic epileptic fits. She said that she suffered an almost fatal epileptic fit in May this year, leaving her in a coma and that she is still recovering from it. She said that her state of health has effected her ability to process too much information at once and to function normally in her daily life. 7 It is not clear exactly when her near fatal fit occurred. However, following the making of the sequestration order, her mortgagee bank sought an order for possession of land. An order was made on 13 June 2012 that she give possession of land mortgaged to the bank. On 19 June 2012, Ms Dimitriou was served with the writ of possession. She sought to negotiate with the bank but failed to reach any accommodation with it so that, on 25 July 2012, it took possession of her properties. At that stage, of course, she was a bankrupt. She applied to the Supreme Court of New South Wales, seeking a stay, on 14 August 2012 and after a short adjournment, that application was dismissed, on 31 August 2012. She made a subsequent application in the Supreme Court, which was also unsuccessful. Consideration 8 In my opinion, it may be arguable that his Honour might have failed to address whether Ms Dimitriou was able to pay her debts but was recalcitrant to do so and that she was accordingly not susceptible to the making of the sequestration order: Re Sarina; Ex parte Wollondilly Shire Council (1980) 32 ALR 596 at 599-600 per Bowen CJ, CA Sweeney and Lockhart JJ. 9 Because Ms Dimitriou is not represented and it is uncertain whether his Honour might not have considered that question and, I am not confident that it would be appropriate to grant the extension of time at this moment. I think the preferable course is for me to refer her to a lawyer for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). The certificate of referral will require the lawyer to advise and, if appropriate, to prepare a notice of appeal and any affidavit supporting the grounds of appeal. The lawyer will be able to see whether Ms Dimitriou has in fact an arguable case that his Honour made an error of the kind I have described. If no such notice of appeal and affidavit are provided then it would not be appropriate to grant leave to appeal because there would not be sufficient reason to doubt that his Honour's decision was correct. Of course, it will be necessary to examine any such material, if filed, to ascertain whether or not Ms Dimitriou ought be granted an extension of time in all the circumstances. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 28 November 2012