FEDERAL COURT OF AUSTRALIA

Liprini v Liprini (No 2) [2011] FCA 1150

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 16 September 2011 be dismissed.

2.    The applicant is to pay the second respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1        The appellant, Allan Stephen Liprini (Dr Liprini), has instituted this appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 17 May 2011, which dismissed Dr Liprini’s application for an annulment of his bankruptcy. The appeal is listed for hearing on 7 November 2011.

2        On 16 September 2011 Dr Liprini filed an interlocutory application in this proceeding, effectively seeking a stay of the administration of his bankruptcy pending the determination of the appeal. He also sought relief seeking the return and preservation of certain property removed from premises at 15 Rajani Road, Helensburgh (the Helensburgh property).

3        I heard the application on 5 October 2011. At the conclusion of the hearing, which I will discuss in more detail, I indicated that I did not propose to accede to the application and that I would publish reasons for that decision today. These are my reasons.

4        Dr Liprini is a self-represented litigant. He appeared on the hearing of the interlocutory application.

5        On 7 June 2011 Dr Liprini filed a notice of motion in this appeal seeking a stay of the orders that had been made by the Federal Magistrates Court dismissing his annulment application. The motion was heard by Jacobson J on 22 June 2011, at which time his Honour dismissed Dr Liprini’s application for a stay: Liprini v Liprini [2011] FCA 722.

6        In his reasons for judgment, Jacobson J noted that Dr Liprini had made serious allegations against his trustee in bankruptcy, Mr Pascoe. These allegations were apparently contained in an affidavit made by Dr Liprini on 7 June 2011 and repeated by Dr Liprini in oral submissions on 22 June 2011. His Honour found that those allegations were not supported by evidence and amounted to no more than bald assertions made against Mr Pascoe.

7        The present interlocutory application, to which Mr Pascoe is also a party respondent, is supported by an affidavit affirmed by Dr Liprini on 16 September 2011. In this affidavit Dr Liprini alleges, amongst other things, that Mr Pascoe has acted in breach of duty, apparently by authorising the removal of certain goods from the Helensburgh property. The evidence indicates that the Helensburgh property forms part of Dr Liprini’s bankrupt estate. Mr Pascoe is the registered proprietor of that property.

8        On 12 August 2011 Mr Pascoe, through Redmond Hale Simpson Solicitors, gave, by letter, notice to Dr Liprini that he had decided to sell the Helensburgh property. The letter noted the presence of a large number of goods which remained on the property and advised that, unless the goods were removed by Dr Liprini within 14 days, or suitable alternative arrangements made, they would be removed by the trustee and taken to a waste disposal facility. The letter provided Dr Liprini with contact details to assist him in arranging for the goods to be collected, if that was his desire.

9        It appears that Dr Liprini took no steps to remove the goods from the property or to make alternative arrangements, suitable to the trustee, for their removal.

10        The event which has precipitated the present application appears to be the fact that the goods have now been taken from the property.

11        In the course of the hearing I was informed by Mr Farrar, who appeared as Mr Pascoe’s solicitor, that the goods had been taken to three waste disposal facilities and destroyed. Dr Liprini does not accept this to be the case. However, I have no reason to doubt this statement. It is entirely consistent with the notice that was given to Dr Liprini by the letter of 12 August 2011. Quite apart from this statement, and in the absence of evidence to the contrary, I would draw the inference, from the terms of the letter and the fact that the goods have been removed from the Helensburgh property, that they were disposed of as waste under Mr Pascoe’s direction. Moreover I can think of no rational reason why, in light of that letter, Mr Pascoe, who, in the administration of Dr Liprini’s bankrupt estate, is to be treated as an officer of the Court, would misinform the Court about the fate of the goods after their removal from the Helensburgh property and, presumably, secret them at some other location.

12        Objection was taken to large number of paragraphs of Dr Liprini’s affidavit, substantially on the ground that they did not contain admissible evidence but merely argumentative assertions. Many of these objections were well-founded and I rejected a number of paragraphs of the affidavit accordingly. Nevertheless, Dr Liprini sought to rely on the rejected statements as submissions in support of the relief claimed in the interlocutory application, and I have treated them as such. Those statements remain as mere arguments or assertions, largely unsupported by evidence of primary facts. The relevance of many of those statements, considered as submissions, to the relief sought in the interlocutory application is questionable.

13        It is clear from a number of these statements that Dr Liprini feels a great sense of injustice arising from the circumstances leading to his bankruptcy and his lack of success in various proceedings he has brought not only in this Court, but also in the Supreme Court of New South Wales and the Federal Magistrates Court. He feels that the issues he has raised in these various proceedings have been ignored by the courts involved, and are continuing to be ignored.

14        It is also clear that he feels a significant degree of animosity towards his brother, Kevin Liprini (Mr Liprini), who is a respondent in the appeal and also a respondent to the present application. This seems to stem from Mr Liprini’s claims upon his and Dr Liprini’s parents’ deceased estates which apparently resulted in the making of consent orders in the Supreme Court of New South Wales. The petition upon which the sequestration order was made against Dr Liprini’s estate was based on a debt due to Mr Liprini arising from those consent orders. This animosity also appears to be directed to Mr Pascoe.

15        It is sufficient for me to record that the evidence adduced on the interlocutory application reveals no proper basis for the stay that Dr Liprini has sought. The evidence does deal, in the very limited way I have recorded, with the removal of goods from the Helensburgh property. If by removing and disposing of the goods Mr Pascoe has acted in breach of any obligation to Dr Liprini then Dr Liprini will have such remedies as are available to him arising from that breach, whether under the Bankruptcy Act or at general law. I should say, however, that it is far from clear on the evidence before me that Mr Pascoe has acted in breach of any duty to Dr Liprini. But if he has, and if Dr Liprini wishes to pursue him for such breach, it will be necessary for Dr Liprini to articulate and bring a proper claim on proper evidence. The filing of an interlocutory application in the appeal proceeding is not the proper process for bringing and determining such a claim. Quite apart from these matters, the balance of convenience tells against the granting of the relief sought by Dr Liprini for the interim restoration of goods to the Helensburgh property that have already been disposed of as waste. And as I have said, complaints about the way Mr Pascoe has handled this aspect of his administration of Dr Liprini’s bankrupt estate do not provide, alone, a proper basis for staying the continued administration of that estate.

16        It is clear that this Court has a discretionary power to order that the operation of a sequestration order be stayed provided that a notice of appeal has been filed in the Court: see s 29 of the Federal Court of Australia Act 1976 (Cth) and Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424 at 425. The principles on which a stay will be granted in those circumstances are also clear: the Court must consider whether an arguable ground has been raised on the appeal and whether the balance of convenience favours the granting of a stay: Freeman v National Australia Bank Ltd [2002] FCA 427 at [4]; Boumelhem v Commonwealth Bank of Australia (2008) 171 FCR 462 at [23]; Reynolds v Aluma-Lite Products Pty Ltd [2010] FCA 322 at [10]; Watts v Bendigo and Adelaide Bank Limited [2010] FCA 1013 at [11].

17        Dr Liprini did not seek to address me on these matters. However, I have had regard to the notice of appeal. The substantive ground it appears to raise is that, in considering Dr Liprini’s application for an annulment of his bankruptcy, the presiding Federal Magistrate failed to read a particular affidavit placed before the court. No doubt this argument, and the basis for it, will be developed on appeal. I can only say that, at the present time, and in the absence of assistance on that matter, I am unable to conclude, one way or the other, whether this does raise an arguable ground of appeal. I am able to say that the reasons for the decision of the presiding Federal Magistrate do appear to record the affidavit evidence before his Honour. This record appears to correspond with the affidavits referred to in the notice of appeal.

18        In any event, the balance of convenience does not favour the granting of a stay of the continued administration of Dr Liprini’s bankrupt estate given that the appeal is to be heard in the very near future.

19        For these reasons the interlocutory application should be dismissed. The appellant is to pay the second respondent’s costs. The first respondent, Mr Liprini, has filed a submitting appearance in the appeal and played no role in the hearing of the interlocutory application.

Associate:

Dated:    7 October 2011