FEDERAL COURT OF AUSTRALIA

Manolakis v Carter [2008] FCA 505

ANASTASIOS MANOLAKIS v BRUCE CARTER, PETER IVAN MACKS, INSPECTOR-GENERAL IN BANKRUPTCY, COMMISSIONER OF TAXATION and CHAIRPERSON, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

SAD 9 of 2008

MANSFIELD J

16 APRIL 2008

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This application was instituted on 30 January 2008.  It was brought to my attention at the time of its issue, and I directed that it not be served pending the first directions hearing.

2                     At a directions hearing on 7 February 2008, I pointed out to the applicant the shortcomings in the application.  There was an inadequate identification of the orders sought by the applicant against the several respondents, an inadequate identification of the grounds of the application, a failure to comply with O 4 r 6(1A) of the Federal Court Rules by supporting the application with a statement of claim given the nature of the allegations in the application, and a failure in any event whether by statement of claim or by affidavit to identify the material facts upon which the claim or claims were made and the way which the several respondents might understand them.

3                     Those matters were explained to the applicant at some length at the directions hearing on 7 February 2008.  He was given leave to file a further amended application and a statement of claim by 29 February 2008, and was directed not to serve those documents prior to the next directions hearing on 6 March 2008. 

4                     The applicant filed a further form of application and a somewhat more extensive affidavit on 5 March 2008.  He indicated at the directions hearing on 6 March 2008 that the application as then expressed was the final form in which he wished to present it.  In other words, his application was as good as he could get it.  I adjourned the matter to 16 April 2008 to consider whether any further direction or orders would be made in relation to the proceedings as then expressed.  The applicant did not attend on that occasion.

5                     I have reached the view that the application should be dismissed pursuant to s 31A of the Federal Court of Australia Act 1975 (Cth) and O 20 r 1 of the Federal Court Rules.  In my view, as expressed, the application has no prospect of success.  In addition, to the extent to which the nature of the claims are identified, I do not think the applicant has demonstrated that the Court has jurisdiction to entertain all of the claims.  I also do not think the applicant has adequately identified the nature of the claims which may be within the jurisdiction of the Court, and he has not alleged material facts upon which, if proved, his claims might possibly succeed, or upon which any of the named respondents could properly understand the nature of the allegations made against them so as to be able to respond to them.  He has, in addition, not filed a statement of claim as required by the Federal Court Rules.  I shall briefly explain the reasons for that conclusion.

6                     It appears from the affidavit material before the Court now (although not in terms from the application itself), that the applicant is a bankrupt, and that the second respondent is his trustee in bankruptcy.  At one point, the material suggests that the applicant became bankrupt on his own application, but in his submission to the Court he disputed that he was properly made bankrupt as well as complaining of the conduct of his trustee.  He indicated in oral submissions that his concerns, at least in part, were that his trustee had retained personal assets which were not assets available to his creditors in his bankruptcy, and that his trustee had failed to maintain assets of the Anastasios Manolakis Superannuation Fund, although he did not indicate clearly who was the trustee of that fund or why his trustee in bankruptcy had any responsibility to act in relation to the conduct of the trustee of that fund.  He also complained, as he does in the amended application, that for some reason his trustee should be “investigated for breaches of duty and criminal acts committed as trustee”, as well as for other criminal conduct unrelated to the trustee’s work as trustee.  It also appears from his affidavit that the applicant was the sole director and shareholder of three companies, Kenurios Zoi Pty Ltd, Thomiki Pty Ltd and Hrimatothotis Pty Ltd, which he describes as members of the “De George Group of companies”, and which conducted business under the names De George Consulting, De George Constructions, De George Finance, De George Realty and De George & Associates, all of which names (he says) were owned by the company Kenurios.

7                     The affidavit material further alleges that the first respondent was appointed as liquidator of Kenurios at some unidentified time.  The application then seeks that the liquidator “be investigated for breach of duty and criminal acts committed as liquidator of” Kenurios as well as other criminal conduct unrelated to his work as a liquidator.  The other respondents are joined because, in some way, it is said that the Australian Taxation Office and ASIC and the Inspector-General in Bankruptcy should investigate the conduct of the liquidator and the trustee.

8                     The grounds of the application are utterly sparse.  They assert unspecified breaches of duty to creditors, shareholders and employees of unspecified entities, defrauding the superannuation fund, misleading shareholders and misleading creditors, and allowing fraud to be committed against Kenurios and Thomiki.  The revised application extends the named persons or entities against whom the first and second respondents are alleged to have committed fraud, and the participation of certain judicial officers in that fraud (those officers not being named as respondents).

9                     There is no statement of claim as is clearly required by the Rules.

10                  There is an attachment to the amended application which appears to be misconceived, as it apparently relates to the proceeding in which I have also given judgment today.  I have taken it into account in that other matter:  Manolakis v Senior Registrar of the High Court of Australia [2008] FCA 506.  It relates to the dealings with an application for special leave to appeal to the High Court of Australia from a decision of the Court of Criminal Appeal of the Supreme Court of South Australia.

11                  The more extensive affidavit to which I have referred gives some further background to that which I have already referred to.  It gives some information as to the financial status of Kenurios, and of the applicant.  So far as I can understand, it suggests that by various proceedings involving Thomiki, Kenurios, the applicant and other third parties, various debts owing to the applicant or to Kenurios and Thomiki might be recovered and taken into account to demonstrate that Thomiki will then receive sufficient funds to be able to pay the debts of the De George Group of companies so that the applicant may not in the future be insolvent, and separately that the creditors to whom he was indebted at the time of his bankruptcy, or at least one of them, acted somewhat unfairly in demanding payment of the debt.

12                  Clearly, there is insufficient information in that material to support any allegation of breach of duty on the part of the trustee or on the part of the liquidator or to support any claim that any of the other respondents are in breach of a statutory obligation to investigate their behaviour at the behest of the applicant.  Clearly also, there is no information provided by that affidavit as to other fraudulent or other criminal conduct on the part of the first or second respondents, or of complicity of unnamed respondents in covering up any criminal conduct.  There is no proper foundation laid for the applicant now to complain in any event about the conduct of the liquidator.  There is no jurisdictional foundation specified for the Court in any event to entertain the claims of criminal conduct unrelated to the conduct of the first and second respondents as liquidator of Kenurios and trustee of the bankrupt estate of the applicant.  Those unsupported allegations are scandalous, and should not have been made in the absence of both proper material facts being alleged and of the jurisdiction of the Court being properly involved in relation to them.

13                  The applicant has indicated that the claim as now expressed is as good as he can present it.  In those circumstances, it is plainly deficient.  Whether he has an entitlement to recover from the trustee assets held by the trustee which are personal assets not available to his creditors in his bankruptcy, and whether the trustee of the Anastasios Manolakis Superannuation Fund (which I suspect is Kenurios, but may not be) or its liquidator is in breach of a duty as trustee to the beneficiaries of that fund, does not emerge from the material.  If they are the applicant’s real concerns they may, perhaps, have been addressed by appropriate proceedings.  He has failed to do so in this instance.

14                  In my view, the application should be dismissed.  I so order.

Associate:

Dated:         16 April 2008