Federal Court of Australia

Voukidis Holdings Pty Ltd v Pascoe (as trustee of the bankrupt estate of Voukidis) [2024] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 20 September 2024 is dismissed on the condition that the Respondent provide an undertaking to hold sufficient proceeds from the sale of the property known as 3 Wyatt Avenue, Burwood NSW in trust to enable the debt owed to the Applicant (calculated in accordance with order 7 of the orders of Justice Button made 23 August 2024) to be paid in full, pending determination of the appeal.

2.    The Applicant is to pay the costs of the interlocutory application.

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

REASONS FOR JUDGMENT

HESPE J:

1    On 23 August 2024, Button J made the following orders to give effect to her reasons for judgment in Pascoe (as trustee of the bankrupt estate of Peter Voukidis (Dec’d) and Kathy Voukidis) v Voukidis Holdings Pty Ltd [2024] FCA 915:

THE COURT DECLARES THAT:

1.     The loan agreement dated 1 October 2010 (Loan Agreement) between the First Respondent (Voukidis Holdings) and Peter Voukidis and Kathy Voukidis (the Bankrupts) did not create a security interest in respect of the property known as 3 Wyatt Avenue, Burwood NSW, being the property described in Folio B/959723 of the New South Wales Land Titles Register (Property).

2.     The deed dated 31 March 2021 (Loan Deed) between Voukidis Holdings, the Bankrupts and the Third Respondent (Christos Voukidis) is void, pursuant to ss 120 and 122 of the Bankruptcy Act 1996 (Cth) (Act).

3.     The mortgage dated 22 March 2021 (Mortgage) in respect of the Property between Voukidis Holdings and the Bankrupts is void, pursuant to ss 120 and 122 of the Act.

4.     The transfer by Peter Voukidis to the Second Respondent (ZVAM) of 502 ordinary shares in Voukidis Holdings, on a date between 15 May 2020 and 5 August 2020, is void, pursuant to s 120 of the Act.

5.    The transfer by Kathy Voukidis to ZVAM of 501 ordinary shares in Voukidis Holdings, on a date between 15 May 2020 and 5 August 2020, is void, pursuant to s 120 of the Act.

6.     The transfer by ZVAM to Christos Voukidis of 1003 ordinary shares in Voukidis Holdings, on a date between 6 September 2022 and 13 January 2023, is void, pursuant to s 37A of the Conveyancing Act 1919 (NSW).

7.     By reason of the condition referred to at paragraph 9 below, Voukidis Holdings is entitled to be admitted as an unsecured creditor in respect of the bankrupt estate of the Bankrupts for the amount of $377,497, being the sum of $278,650 plus interest of $98,847.

8.     The rights of Voukidis Holdings referred to in paragraph 7 above are held by it in its own right, and not in its capacity as trustee of the KEPP CO Unit Trust.

THE COURT ORDERS THAT:

9.     The Loan Agreement be set aside, upon the condition that the Bankrupts were liable to repay to Voukidis Holdings any advances of money made by Voukidis Holdings to the Bankrupts between 1 October 2010 and 20 July 2021, together with interest on those advances calculated at the same rate of interest as that charged by AMP Bank Ltd upon the debt of the Bankrupts to AMP Bank Ltd, on a simple interest basis.

10.     Christos Voukidis do all things necessary to cause the transfer to the Applicant of 1003 of the 1004 ordinary shares in Voukidis Holdings which were transferred to him by ZVAM.

11.     ZVAM take all steps necessary to remove caveats nos. AQ339359 and AR27773, in respect of the Property.

2    By notice of appeal dated 20 September 2024, Voukidis Holdings appeals from “part of the orders” made on 23 August 2024. It seeks that paragraph 1 of those orders be set aside and in lieu thereof, it be ordered that Voukidis Holdings has a secured interest in the Property located at 3 Wyatt Avenue Burwood NSW for all moneys advanced under the loan agreement dated 1 October 2010 and interest on the advances calculated at the monthly rate charged by AMP Bank Ltd on the first mortgage on the Property.

3    By interlocutory application dated 20 September 2024, Voukidis Holdings applied for interlocutory relief in the form an “order pursuant to Rule 36.08(2) of the Federal Court Rules 2011 staying the orders of Button J on 23 August 2024 pending hearing and determination of the Appeal”.

4    That interlocutory application came before me as duty judge. The urgency is said to arise by reason of the forthcoming auction of the Property on 7 December 2024 at the direction of Mr Pascoe, as trustee in bankruptcy.

5    I note that the applicant here is Voukidis Holdings and that 1003 of the 1004 shares held by Mr Voukidis in Voukidis Holdings were ordered by the primary judge (pursuant to order 10) to be transferred to Mr Pascoe. There is no challenge to that order in the notice of appeal. It appears that although those shares have been transferred, Voukidis Holdings issued 90,000 shares to ZVAM. The result is that Mr Pascoe does not have a controlling interest in Voukidis Holdings.

NO Power to Grant a STAY

6    Rule 36.08 of the Federal Court Rules 2011 (Cth) provides:

36.08      Stay of execution or proceedings under judgment appealed from

 (1)     An appeal does not:

 (a)     operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal; or

 (b)     invalidate any proceedings already taken.

 (2)     However, an appellant or interested person may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined.

 (3)     An application may be made under subrule (2) even though the court from which the appeal is brought has previously refused an application of a similar kind.

Note: Interested person is defined in the Dictionary.

7    It is well established that the Court has a broad discretion to grant a stay pending an appeal in “an appropriate case” (Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66 (Burchett J)). Whether a case is one in which it is appropriate to grant a stay requires the consideration of two questions: first, whether there is an arguable point in the appeal (Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 at [24] (Kenny J)) or some “rational prospect of success” on any of the grounds of appeal (Burns v AMP Finance Ltd [2005] FCA 761 at [5] (Emmett J)); and secondly, whether the balance of convenience favours the grant of a stay (Nolten at [24]).

8    At the hearing it was accepted by the applicant that this is not an appropriate case in which to grant a stay.

9    The notice of appeal raises a single issue concerning the construction of a loan agreement. The notice of appeal does not seek any change to the orders made by the primary judge other than order 1. Having regard to the ground of appeal, there is no challenge to orders 2 to 7 or 10 to 11. The orders sought by the notice of appeal appear to accept the condition in order 9. In summary, the primary issue on appeal concerns the correctness of the declaration made in order 1.

10    As Lee J observed in XL Insurance Company SE (t/as Brooklyn Underwriting) v Kerembla Pty Ltd [2023] FCA 1038 at [4], if a judgment is, in substance, declaratory rather than executory, it does not order a party to act in a particular way, such as to pay damages or refrain from interfering with a claimant’s rights, either of which would be enforceable by execution if disobeyed. A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs: XL Insurance at [5] (Lee J), citing Lord Woolf and Woolf J in Zamir & Woolf: The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2001) (at [1.02]).

11    In Arnhem Land Aboriginal Land Trust v Northern Territory [2007] FCAFC 31; 157 FCR 255, the Full Court at [5]–[7] (French, Finn and Sundberg JJ) set out a wealth of authority in support of the proposition that ordinarily, a declaratory order will not be stayed.

12    A stay of order 1 made by the primary judge would not have the effect of creating, conferring or confirming a security interest in favour of Voukidis Holdings in the Property. A grant of a stay of order 1 is of no utility.

13    At the hearing, Voukidis Holdings sought to amend the form of relief sought to an interlocutory injunction to restrain the trustee in bankruptcy from proceeding with the auction scheduled for this Saturday.

14    Mr Pascoe as the trustee in bankruptcy is the registered proprietor of the Property. Based on the affidavit of Alan Foster dated 4 December 2024 filed on behalf of Mr Pascoe, it is anticipated that the sale of the Property will realise sufficient proceeds to pay out the creditors of the bankrupts and bring the bankruptcy to an end. At the hearing, Counsel for Mr Pascoe indicated that unsecured creditor claims made by some entities related to Mr Christos Voukidis have not been included in that estimate. At this stage formal proofs of debt have not been called for by the trustee in bankruptcy. If the creditor claims of those entities related to Mr Christos Voukidis are proven, it is not clear whether the anticipated proceeds of sale will necessarily be sufficient to enable all creditors to be paid in full.

15    The principles that govern the Court’s discretion to grant interlocutory injunctive relief are well-settled. To qualify for such relief, the applicant must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 at [65]–[72] (Gummow and Hayne JJ, Gleeson CJ and Crennan J agreeing at [19]). Whether the applicant has made out a prima facie case and whether the balance of convenience and justice favours the grant of an injunction are related inquiries. “The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience”: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67], citing Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2009] FCA 595; (2009) 81 IPR 339 at [15] (Sundberg J).

16    The purpose of interlocutory relief is to preserve the status quo in order to ensure the effective exercise of the jurisdiction invoked by the parties: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ). Interlocutory relief does so by preventing the practical destruction of rights to be determined before there has been the opportunity to have those rights finally established: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [9]–[12] (Gleeson CJ).

17    The issue on appeal concerns the construction of a contract and I have accepted for the purposes of this application that there may be some arguable point concerning the correct construction of the contract. Neither party addressed the Court on the precise point of construction.

18    I am not satisfied that such interlocutory relief is appropriate. Even if successful on appeal (the prospects of which are not necessary to determine for the purposes of this application), Voukidis Holdings’ interest in the Property would be a security interest to ensure that the debts owed to it can be satisfied. The sale of the Property does not put that protection at risk, particularly if the trustee in bankruptcy is required to give an undertaking to preserve to Voukidis Holdings the proceeds of sale to the extent necessary to enable the debt owed to Voukidis Holdings to be paid in full by holding sufficient proceeds in trust pending determination of the appeal. I therefore reject the submission made by Voukidis Holdings that a sale would render any security nugatory.

19    Voukidis Holdings submits that it seeks to make a payment to annul the bankruptcy, subject to coming to an agreement with the trustee on the required amount. An annulment of the bankruptcy is not part of the jurisdiction sought to be invoked in the appeal. I also note that Voukidis Holdings has been on notice for months that the Property is to be sold and there is no evidence that Voukidis Holdings sought to progress any negotiation of annulment terms between 6 November 2024 and 3 December 2024. Based on the evidence before me, Voukidis Holdings has been advised of the amount required to be paid in order to annul the bankruptcy. It is open to Voukidis Holdings to make that payment if it wishes to annul the bankruptcy and avoid the auction of the Property.

20    Voukidis Holdings submits that a sale of the property prejudices the interests of a third party, being the bankrupt, Mrs Kathy Voukidis. It has been her home for 60 years. Mrs Voukidis has been residing in a nursing home since at least June 2024. Although termed by Mr Voukidis as a “respite care facility”, Mrs Voukidis resides in the care of a facility (PJ [132]). She does not live at the Property. Mr Voukidis’ own evidence is that the Property is now vacant.

21    As is not an uncommon experience, Mrs Voukidis may speak of returning to her home but there is nothing before me to suggest that there is any realistic prospect of her doing so. I accept that it will be distressing to Mrs Voukidis when she understands that the Property has been sold. However I am not persuaded that Mrs Voukidis’ emotional attachment to the Property is a sufficient basis on which to restrain the trustee in bankruptcy from performing his duties. The creditors have an interest in being paid out as soon as possible. Whilst future property prices cannot be predicted, delay also exposes the bankrupt’s estate to the risk of a fall in property prices. The extent of that delay is unknown.

22    The application is to be dismissed on the basis that the respondent provide an undertaking to hold sufficient proceeds in trust to enable the debt owed to Voukidis Holdings (calculated in accordance with order 7 of the orders of the primary judge) to be paid in full, pending determination of the appeal. The applicant is to pay the costs of the application.

Associate:

Dated:    5 December 2024