Velissaris v Maryvell Investments Pty Ltd (In Liquidation) & Anor [2007] HCATrans 632 (1 November 2007)

Last Updated: 7 November 2007

[2007] HCATrans 632

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M102 of 2007

B e t w e e n -

CONSTANTINOS GEORGE VELISSARIS

Plaintiff

and

MARYVELL INVESTMENTS PTY LTD (IN LIQUIDATION)

First Defendant

LAURENCE ANDREW FITZGERALD LIQUIDATOR OF MARYVELL INVESTMENTS PTY LTD (IN LIQUIDATION)

Second Defendant

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 1 NOVEMBER 2007, AT 10.29 AM

Copyright in the High Court of Australia
MR C.G. VELISSARIS appeared in person.

MR S.P. GARDINER: May it please the Court, I appear on behalf of the respondents. (instructed by Robert James)

HIS HONOUR: Yes, Mr Velissaris, you are appearing on your own account today. Is that right?

MR VELISSARIS: Your Honour, yes, unfortunately I just could not get..... I had to appear. It was the final occasion. I could not get anybody else for the case can be.....

MR GARDINER: Your Honour, we facsimiled an affidavit to the Registry yesterday afternoon in response to Mr Velissaris’ affidavit. I am not sure if your Honour - - -

HIS HONOUR: Yes, I have seen that.

MR GARDINER: Could we file the original of that affidavit with the exhibits, your Honour?

HIS HONOUR: Yes. You may file that in Court. Now, can I just understand precisely what process we have, when you have your papers assembled, Mr Velissaris? Now, this, Mr Velissaris, is the return of your summons of 29 October. Is that right? Is that right, Mr Velissaris?

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: Your summons of 29 October?

MR VELISSARIS: Yes.

HIS HONOUR: You have an affidavit of 29 October which you have sworn in support of that summons. Is that right?

MR VELISSARIS: Yes, your Honour. Yes.

HIS HONOUR: Is there any objection to my receiving that affidavit and reading it, Mr Gardiner?

MR GARDINER: Subject to arguments about relevance, your Honour, no, there is not.

HIS HONOUR: Yes. Then in answer, Mr Gardiner, you rely upon the affidavit of Laurence Andrew Fitzgerald? Is that right?

MR GARDINER: Yes, sworn yesterday, your Honour.

HIS HONOUR: Sworn yesterday.

MR GARDINER: Could I say about that affidavit, your Honour, it responds to allegations about my client’s conduct of the administration and it is not directly relevant to the question before the Court today, in other words, the application for the stay.

HIS HONOUR: Yes. Now, Mr Gardiner, the first relief sought is to deem the application for leave not to be abandoned. What is the attitude of your side?

MR GARDINER: Your Honour, on the last occasion your Honour considered the application for special leave you made certain determinations in regard to the prospects that Mr Velissaris had in that special leave application. We say that there would be no point to reinstatement of the appeal given the findings that have already been made about the prospects of that appeal.

HIS HONOUR: Is it not better that the application go forward for consideration by a panel of two Justices rather than going forward in the guise of an application for leave to appeal against a decision by one Justice to refuse to reinstate it?

MR GARDINER: It would be difficult to argue against that course.

HIS HONOUR: The practicality of the matter is, I assume – and I do not ask for or expect any comment by either side – that were I to refuse to reinstate it that would generate an appeal or application for leave to appeal. That would go forward to a panel of two anyway. Are we not better to simply reinstate the matter? Now, the costs of the reinstatement would - - -

MR GARDINER: I accept what your Honour says.

HIS HONOUR: - - - be a separate and distinct question.

MR GARDINER: Yes.

HIS HONOUR: Yes. Well, now, Mr Velissaris, I am minded to order that your application for special leave to appeal not be deemed abandoned, that is, to reinstate the application for special leave. Leaving that question on one side, can we then look at the other applications you make, which are firstly to restrain the auction, secondly to allow you to return to occupation and then thirdly for the liquidator to provide certain forms of information to you. What is it you wish to say in support of those applications?

MR VELISSARIS: Your Honour, I plead with you to just hear me and try to understand me although I am not well at all. I have got a serious heart problem, but unfortunately, due to restraints and so forth and so on I could not get Mr Selimi to appear today or somebody else.

Now, I put my application before the Court to definitely seek orders from the Court for Mr Fitzgerald to provide me with an itemised account of his costs for God’s sake because I request of him from 6 July last year, your Honour, and I have given the letter to him and other letters that are.....to you, your Honour. I had no time to sort of, you know, put them as exhibits, but a lot of letters here that have been.....of last year. All these letters have been typed. They have been put in my affidavit of 15 June 2006 in the Supreme Court proceedings, but mainly what I want to say, your Honour, is - which I find it quite insulting to my.....intelligence - I have.....served with a summons, 1.32 pm, 29 October.....by hand delivery.

Then eventually around 5.00 pm he faxed me this letter of 29 October to put a bit of perspective as to how much that is costs. I find exuberant, your Honour, exuberant. .....for God’s sake I begging you last year and I answered phone calls and faxes, “Please, let us sit down and settle the matter”. There was a meeting I had with him.....last year at the restaurant. I told him, “.....I have been given the wrong advice. I should pay these bloody items on it originally”. Pardon me, your Honour. “Not to go into this battle”. I mean I nearly had..... Now, the point is your Honour, I discovered.....how much, how you can claim here $600,000 for costs to be on me, but anyway, the point is I want to pay him out for God’s sake. I want to pay them out in.....whatever.

The point is I have been told by my solicitors and Mr Selimi - .....both provided with itemised account and.....and I am prepared to pay money if the court or whatever to stop the matter. She never come to party.. The letter of 6 July last year, the paragraph:

Further to my previous letters to you and the verbal discussion with your Mr Tom Lesnikowski And Mr D. Hardy here, the 28th June 2006, and as I have Stated to them, “WE WANT TO KNOW “HOW MUCH MONIES” You Are Claiming here to Pay Out the Relevant (Purported Creditors) AND TO SETTLE THE MATTER - - -

with you. I told him I do not want to go on with litigation and I put you on notice not to try to make any wrong at law action. I said, “I am willing to negotiate with you”. Now, 11 July another two page letter:

I confirm to you with this letter what we have discussed today at around 10 a.m. WHEN YOU RANG ME UP.

As I told you over the phone and with my thanks to you for ringing up, I want to be straight and UPFRONT with You and I request your cooperation here TO SOLVE THIS MATTER AND WITHOUT DELAYS.

I Confirm to you that Maryvell Inv. P/L is a TRUSTEE COMPANY –

I refer you to.....appeal which was held on 28 August and your Honour, look, I make a point here is this. The Magistrates Court make an order against my trustee company at the time who have paid Bullard’s lawyers to.....October to deal with our matter. Mr Bullard, I have been told, .....on 3 October when he rung me eventually why he had applied to the Magistrates Court 11 October to fast forward it back up to the County Court and he would assure me that.....to the County Court and it would not be.....a month ago ..... $4,000 to put this Court in battle fees. I told him I wanted to deal with the matter here......

She failed to.....me around 5.00 pm.....October then and then she failed to transfer to the County Court..... Before the magistrate the next morning, your Honour, he will not adjourn here.....five, six times.....I wanted to pay Tolhursts.....costs. By law I have been told it was legally 100 per cent.....he has fined the company.....costs. Anyway.....the company went into liquidation because unfortunately I can see now.....they did not handle the matter properly and they give me wrong advice.

HIS HONOUR: Mr Velissaris, I understand there is a very long history in this litigation.

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: I understand also that you tell me now that you want to make some financial settlement of it.

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: Now, that is going to be a matter that you will have to negotiate as best you are able with the liquidator. I cannot do that negotiating for you.

MR VELISSARIS: Your Honour, yes. I accept that, but really if I may say, I have put nearly a dozen applications for the month and I applied for $1.82 million and I will get the money. The biggest problem, your Honour, is one thing only. There are no valuers available to come to value the property. You would wait nearly two months for that. Eventually I begged the.....every letter and I send him letters and letters and letters and they send me a letter yesterday eventually that they will do the valuation for this property by 27 November 2007. “We are very busy” - this is the letter, your Honour, the.....and I sent them letters and discussions. I told them Mr Close, which is the senior valuer.....and I talked to Mr Anderson and they told me they are, “Busy, busy busy”. Other valuers, they are just too busy even worse now. .....bigger company that got more valuers and they will do it – that is black and white - by 27 November.

Now, your Honour, there is no doubt whatsoever the property is worth minimum up to a million. I do not believe whatsoever.....eight, 1.5 million is a difficulty because the valuation of land.....it was 1.85 land value only – I mean, building value only, not the land, which was for the.....bank. How come in.....it was 1.85 for the building, they put only.....about 390 square metres but so much per square metre they cannot do this valuation. Anyway - - -

HIS HONOUR: Mr Velissaris, do I understand you to say this: one, you want to settle the matter?

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: Two – you will be quiet and hear me out. Two, the money will come but it is not here yet.

MR VELISSARIS: Yes.

HIS HONOUR: Three, the money is not here yet because valuers and lenders are overwhelmed with work?

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: Is that what it comes to?

MR VELISSARIS: Yes, your Honour.

HIS HONOUR: Yes, I understand that argument.

MR VELISSARIS: Yes, your Honour, especially the valuer, your Honour.

HIS HONOUR: No, you will be quiet.

MR VELISSARIS: I am sorry.

HIS HONOUR: I understand those arguments. What other arguments do you wish to advance? What else do you want to say? I understand that is what you say. What else is it that you want to say?

MR VELISSARIS: Well, that is what I wanted to say, your Honour, in regards to – this property is my life. I have.....since 14 January 61. I have worked very hard in my life. I have two children. My daughter, she expects her second baby now. My son is 21. He goes to Monash. He lives down there.....close to Monash and the family has been in an upheaval. My wife had a very bad accident – being a passenger in a taxi and she got crippled. The last two or three years has been the most terrible part of my life, and last year especially, and both.....by my heart. I must have open heart operation. I cannot avoid, but there is no way out. I am taking 14 medications a day now and I did not want to be under stress, your Honour. I have been ill for.....and 22 September I was taken to hospital by ambulance - - -

HIS HONOUR: Yes, I have read that.

MR VELISSARIS: Now, because they would not let me go. I am due for a big – what you call a nuclear medicine test – now, 26, I believe, of November. Your Honour, I am in hostel because there is a long list.....decide if they do me a heart surgery or not. Now, your Honour, there is no doubt in my mind that the property will get the valuation even – even sworn by the.....2.5 or 2.7.....will get the money.....no problem. I.....since 1967. I have got a certificate to prove that I know values. Here is my letters and here is the other decent valuers over.....all of them they say, from 3.3 million to 3.8 million.

They have been put as exhibits to my affidavits before. Here, your Honour – here is the exhibit they put to this honourable Court, in the Court of Appeal and so on. Here is all the valuation. Now.....have got 45 offices, a big.....a big commercial licence.....I know Mr.....since he was in.....when I was with.....in Burwood Road since 1967.....I mean.....4 million no problem if.....1.2, 1.5 but he puts it precisely because, your Honour, it is very hard to find a piece of land in Brunswick 230 feet long in.....with a street behind. It is ideal for development into 10 storeys or minimum 8 storeys would put there 20 flats.....minimum 400,000 each. Now, to build the flat was 30,000 plus 100,000 for the land. For 20 flats the land quarter million.

HIS HONOUR: Well, Mr Velissaris, I understand that you consider the property to be much more valuable than others have said it is. I understand that point.

MR VELISSARIS: Your Honour, I assure you and if I have said, your Honour, here what I have said most of all, your Honour, is.....letter said that the matter.....he put the.....because when.....before the election, before this and that, this is the difficulty. I need time to arrange statements.

HIS HONOUR: Mr Velissaris, be quiet.

MR VELISSARIS: Sorry, your Honour.

HIS HONOUR: Listen to me. First, you do your case no good by becoming excited.

MR VELISSARIS: Sorry, your Honour.

HIS HONOUR: Second, you have told me already that you wish to settle the dispute and that you will borrow money to do so. I understand that argument. Is there something else that you wish to say?

MR VELISSARIS: Your Honour, yes, to stop the auction and I give my undertaking.....to you within two months maximum. I am sure we will get the money. Or it maybe – it is Christmas or less, but I am waiting to hear from the valuers and I would in fact engage even other valuers. I have got 10 applications, serious applications. I have got.....we have got John.....solicitors.....finance.....letters on the back. I have got private funds. I have got Luke Brennan from.....I have got.....I have got a dozen applications. Problem, your Honour, is time, time.

Now, I can provide things.....value. Property was sold.....a property which was sold, I have seen it about 395.....put it here on my affidavit. I have got this letter of the agents here.....which was only 4.5 metre, possibly 3 metres.....Here is the commercial CBS.....960,000. This was sold. It was only 76.5 metre square shop. These shops here, they are 390 square metres, for God’s sake. If the land is three times bigger, if this is sold, your Honour – it is in a row, your Honour.....that building here, your Honour, is a Victorian State property and I love the old buildings and they have been renovated by us 1999 and 1990. We spent $1.2 million on renovations.

HIS HONOUR: Mr Velissaris, what this property would bring at auction is not immediately relevant to the issue I have to decide. The issue I have to decide is whether I should interrupt the auction that is planned to occur on 14 November. Is there anything else you wish to say in support of the argument that I should interrupt that auction?

MR VELISSARIS: What I can say, your Honour, is this. I would pay the money into court or pay Mr.....costs out. In regard to the first mortgage.....we talked about, credit, where there no other credit but the first mortgage.....I give you my full guarantee indemnity and I am fully responsible for this loan. Now, the point is it will pay him out, the bank will carry on, they told me. But I will get the money to pay everybody out and start with.....There is not.....your Honour. I hope God to help me to.....my heart, that is all, or if not, my kids will proceed on.

There is a family here that is in a worst tragedy that there is for a small amount of money which I believe, your Honour, those solicitors got away with murder. The point is a truck hit us on the verandah, we put him to recover us the damages. He promised definitely for sure. We charge about.....maximum.....8,450.....and this became the cancer in my heart and my brain. I cannot take it, your Honour. I am asking for justice, for God’s sake. I mean, if I lose.....I will commit suicide.....This is all my life’s work and I am not a gambler, I am not a person to do nothing. I am a hard working person and I believe in law and order in society.

I believe in my Greek origin and I love democracy, I love justice but, your Honour, I have got to tell you honestly, justice has let me down this time around completely. And I pay lawyers upon lawyers upon lawyers and barristers and.....told me.....otherwise.....he showed the documents, the.....and he told me completely. He say the company does not own the property. Your family trust is the real owner. You have.....if you put me to Mr Andrew Panna, QC to prepare me the application to go to court to prove the trustee company is not the.....owner.

The honourable judge did not even give me leave to apply on the matter. He want to deny me justice, I believe, and I still honestly believe it, your Honour. I mean, I have been told by top, more or less, legal people and.....one cent, but he told me, “I can’t help you. You go to this.....or this barrister or this barrister.....Andrew Panna.....and I use Andrew Panna who is.....Greek guy and I pay him money to prepare me the application then back in last year in April/May.

I.....say, you got to apply to the court to prove that the company is not the owner. It would very much.....trustee and you pay him out. We have been denied, your Honour, we have been denied the justice by the honourable Justice.....I mean, I do not want to say that about the honourable judge but I believe justice must be equal for everyone. You see, there is claim against moneys here for a lousy.....for me to suffer all this pain. Your Honour, I want to pay them out.

HIS HONOUR: Yes, you have told me that.

MR VELISSARIS: How much it will be I do not care. I will get the money and pay them out, that is all. I need time, your Honour, that is all. And for me to be able to move into the property so I can put my
family.....lose here couple of hundred.....although I am sick.....to run the restaurant 20 years. We have been deprived of....to pay him rental. To pay rental, your Honour.....and kick me out, your Honour, my clothes only, to pick up.....there are boxes and boxes over there. I do not know what is there. So, your Honour, I beg you – I beg your Honour here today – I mean, to let me move into the shop, carry the business, get the money, pay them out. Give us time, your Honour. Two months or three months maximum, if not before – definitely by the end of January, definitely 100 per cent I am sure of that. I am 100 per cent sure.

I have been assured by people, left, right and centre. If we get the valuation and so forth and so on, we will lend you the money. If not, we will get even second mortgage money to pay the liquidator out and the BankWest would carry on for another three months, easy. The only – time is the problem, time. Your Honour, please, I beg you, give me the chance here because if we lose the property it would be the death of me. I cannot take it any more.

HIS HONOUR: Yes. Thank you, Mr Velissaris. You may sit down.

MR VELISSARIS: Thank you, your Honour.

HIS HONOUR: Mr Gardiner.

MR GARDINER: Your Honour, we say that since the last occasion your Honour determined the application for a stay, which is effectively being renewed, no event has occurred since that dismissal which would give rise to a basis for the matter to be revisited again.

HIS HONOUR: Yes. Do I understand you to oppose the - - -

MR GARDINER: Yes, I do. An auction has been set down for 13 days time. The agents have been in the picture, as it were, since the beginning of the year, February or so, so they are familiar with the property, they are experienced agents for that area. This saga has been going on for nearly 18 months now, since the winding-up orders were made. It has been very protracted litigation. The secured creditor and the unsecured creditors are becoming very disconcerted about the progress of the liquidation. The costs are rising.

HIS HONOUR: Yes. That is as may be. I need not trouble you further, I think, Mr Gardiner. Mr Velissaris, is there anything you wish to add?

MR VELISSARIS: Your Honour, yes, what I want to say, your Honour, is this. Perhaps on this affidavit.....they put here.....to me it is completely misleading to the Court. The affidavit, exhibit LA14. Now, another thing that came to my mind here 20 September which I faxed to Mr Fitzgerald after I received this letter of his dated 19 September under the door at 4.45 when I came back from the hospital and I put here on my letter of 20 September, which I can give you a copy, your Honour – you see I say:

1. I respond to your letter dated 19 Sept 2007, which I have found under the door around 4.45 pm the 20-9-07 when I came back to the premises from my doctors and the hospital.

2. I have rung Mr L. Fitzgerald and I told him some certain facts and especially that I am unable to vacate the premises.

I send this to Robert James Lawyers and to Mr Fitzgerald:

3. I find your letter very vindictive and illegal and not true to the facts. As you must understand that you do not have any court order to kick me out of my place of residence, or to evict me from my place of residence –

which I have lived in since 1990 at least.

4. Further I have a business here established for a long time and at least since 1990, and I own this business and the goodwill is worth in excess of $400,000.00, plus the equipment that they worth around $200,000.00, plus a lot of personal & very valuable things & belongings who are impossible to remove and throw out as I got nowhere to go.

Now, the point is, your Honour:

I have strongly stated again to Mr L. Fitzgerald on our phone discussion today the 20-9-07 at around 5 pm that I request of him to send me “an itemized account of his costs” and “an itemised account in taxable form of the legal costs” of his lawyers and to settle the matter.

I have requested long time ago from L.A. Fitzgerald to inform me in “black and white” “how much monies” and to settle the matter, and since the letter of 6-July 2006 and the 11-July 2006 . . . 24 Aug 2006 –

and on and on and on, but no response yet. Your Honour, what is one to do. I have begged them on the phone and in writing, give us the costs....your Honour.....for God’s sake.....really stupid. Here, creditors, BankWest, you know BankWest.....Bullards, no..... - - -

HIS HONOUR: Mr Velissaris, you will moderate your voice and your tone.

MR VELISSARIS: Sorry, your Honour. Sorry, your Honour.

HIS HONOUR: Do you understand me? You will moderate it.

MR VELISSARIS: Your Honour, yes. Yes, I am sorry, I apologise.

HIS HONOUR: Yes, go on.

MR VELISSARIS: I apologise, your Honour. I am doing this because I - - -

HIS HONOUR: You will go on.

MR VELISSARIS: The point, your Honour, is he put here “Credit” BankWest, yes. Bullards.....nothing at all.....they have been fully paid by me.....he put here zero, what is this.....and I paid it.....22 September.....and the place got stink, all the meats and fish.....been stunk and be thrown out. I have been told.....the place was.....of course, yes, because.....the fridges they are full of meats and fish, of course food would stink and, of course, vermin would go in and.....yes.....close the lights, close gas, close everything.....stink the place out, thank you very much. Then I am supposed to be talking about here other.....more than five 6,000, okay.

The other thing.....nothing. .....lawyers, nothing. .....nothing. .....lawyers, nothing. I mean.....how come he put.....me. .....lawyers, he put zero, zero here. Why he put.....the crook who failed to post this document on time. I paid him $5,000, your Honour, same day. Another solicitor who is a thief.....and this was the catastrophe, but I have to say the company is you saw because.....your Honour, and then the company.....and BankWest. I give them BankWest guarantee and they need to pay them out. I give them my sole full guarantee and.....say, if I do pay them out, I even lose my personal belongings and my home and everything. So.....BankWest, they are not responsible.....not the company. If I did give that.....BankWest Mr David.....told me the bank cannot give this moneys.....He told me you can.....because you are the.....that is why I removed everything afterwards, 15 July 2005.

The point is, your Honour.....for me, George Velissaris, says I am owed $4 million. Yes, I am owed money, but I lend money to the trustee company, yes, I.....the company.....the company was just a container there for the worker. I mean, the property was bought by my daughter on an auction, your Honour, and my daughter.....and the company was supposed to be incorporated in 7 January 1998.

HIS HONOUR: Mr Velissaris, you are, I think, repeating matters which you have already told me several times.

MR VELISSARIS: All right. Your Honour, what I want to say, your Honour - - -

HIS HONOUR: Is there anything new to say?

MR VELISSARIS: What I want to say, your Honour, it would be a great injustice if this property goes to auction on a.....this time I cannot have the money to buy it back. I need time. Or I will sign a contract with Mr Fitzgerald to pay him the moneys so that this costs are there. He say so much, yes.....account it will go to.....cost, but I put the money into his trust account. When I get the maximum I am sure within two months or three months.....scenario I have been told and I believe before January we settle the matter. I believe so, your Honour, but to be safe, if you can help with the time until, say, you know.....January. I will be on holidays in between. That is the problem. You know what I mean? If we have by.....January I will settle it easy, no problem, your Honour.

So, your Honour, I beg you please to save me and save my family. This cost us a fortune but never mind. It does.....great deal to me. I mean.....five, 600,000 the difference. The point is, your Honour, Mr Fitzgerald never wanted to settle. He is misleading the court. I put him on notice and in writing and everything and I beg him to settle the matter. I have no idea how much - - -

HIS HONOUR: Mr Velissaris, you will not bang your fist at me. Do you understand me, sir?

MR VELISSARIS: I apologise, your Honour. I apologise. I am sorry. I am sorry.

HIS HONOUR: Yes. Go on.

MR VELISSARIS: I am sorry. I apologise, your Honour. Thank you. Your Honour, I am begging you. I have no time to respond to this affidavit today. They send it to me this – 9.30 am today.....I have no time to respond to that. I only notice here the creditors he puts here.....I am not.....at all, okay? The creditors they got their own money paid. They were paid by us, not to the bank. BankWest and.....to pay BankWest. I spoke to Mr.....the other day. He say, “Yes, we did call”. I told him, “Why don’t you.....”, you know.....we do not want – if the bank take possession, it would have been better for me. They do not want to take possession and they are not in a hurry. They got a duty to.....so the bank they no worry.
Mr.....lawyer.....making money. I would pay him out. We told him so many times.

HIS HONOUR: Mr Velissaris, you are repeating yourself. Is there anything fresh you wish to say?

MR VELISSARIS: .....your Honour, but.....and I will pay them out. That is something I promise you.

HIS HONOUR: You have told me that, yes.

MR VELISSARIS: I will pay them out. That is all.

HIS HONOUR: Yes, thank you.

MR VELISSARIS: But I need time, your Honour.

HIS HONOUR: I understand.

MR VELISSARIS: Thank you, your Honour. That is all. I leave it up to you, your Honour.

HIS HONOUR: On 17 September 2007 Constantinos George Velissaris filed two applications for special leave to appeal to this Court. Those two applications arose out of two separate proceedings in the Supreme Court of Victoria relating to a property at 333 to 335 Sydney Road, Brunswick.

In one of the proceedings in the Supreme Court of Victoria application was made by Mr Velissaris for leave to appeal from the decision of a master declaring a purported lease between the respondent in this Court, Maryvell Investments Pty Limited (In Liquidation), and Mr Velissaris in respect of the land to be void and unenforceable, together with an associated application by Mr Velissaris for leave to proceed against Maryvell Investments (In Liquidation) and against its liquidator for declarations concerning his entitlement to an interest in the land.

The other proceeding in the Supreme Court of Victoria was a proceeding brought pursuant to summary procedures under Order 53 of the relevant rules of that court by which the company in liquidation sought to recover possession of the land.

At the trial of those proceedings in the Supreme Court counsel then appearing for Mr Velissaris described the proceedings as forming “part of a piece of unfortunate litigation which commenced when a truck struck the property situated at 335 Sydney Road, Brunswick in 2002 which then gave rise to a spiralling series of legal proceedings involving the company and its previous solicitors culminating in the liquidation of the company and the appointment of a liquidator at the behest of the company’s previous solicitors, Messrs Tolhurst, Druce and Emmerson on 19 June 2006.”

At trial Mr Velissaris failed in the two proceedings I have described. The liquidator obtained judgment for possession of the land.

Mr Velissaris’ subsequent application for leave to appeal to the Court of Appeal of Victoria and an application he made to reinstate an appeal that had been deemed abandoned were both dismissed.

On 19 September 2007, I heard and determined an application brought by Mr Velissaris in one of the two applications for special leave to appeal by which he sought, in effect, a stay of execution of the judgment for possession of the land. On 19 September I dismissed that application for reasons which I then gave.

Mr Velissaris now applies for orders that his application for special leave to appeal in matter M102 of 2007, which is deemed abandoned, be not be deemed abandoned. He further applies in that application for orders that the auction of the property at 333 to 335 Sydney Road, Brunswick set for 14 November 2007 “be stayed or . . . be abandoned pending the hearing of the special leave application” or the full hearing of an appeal if leave be granted. He further seeks orders that the liquidator be restrained from precluding Mr Velissaris and his family being allowed to continue to run the Greek tavern business, as he alleges they have been doing for the past 20 years. In addition, Mr Velissaris seeks orders that the liquidator provide him with certain information concerning the conduct of the liquidation and the amounts of moneys that have been incurred in that regard.

It is convenient to deal separately with the application that the application for special leave not be deemed abandoned. That application was deemed abandoned when Mr Velissaris did not file his written case on time. His written case has now been prepared and in all the circumstances it would be better, in my opinion, if the application for special leave to appeal were to be determined in the ordinary way. It follows that there will be an order that the application for special leave to appeal in matter M102 of 2007 not be deemed abandoned. Mr Velissaris who seeks an indulgence in that regard must pay the costs of the application to reinstate the application for special leave, and any costs thrown away by reason of the deemed abandonment.

As for the other orders which Mr Velissaris seeks, it is convenient to deal first with the application for an order restraining the conducting of an auction of the property on 14 November 2007 and then deal with the application that the liquidator provide Mr Velissaris with certain information.

So far as the application to interrupt the conduct of the auction is concerned, it is perhaps sufficient to say that none of the matters advanced by Mr Velissaris in the written cases he has filed or proposes to file in the two applications for special leave persuades me that it would be in the interests of justice to grant the relief which Mr Velissaris now seeks precluding further steps consequent upon execution of the judgment for possession of the land.

On 19 September 2007 I declined to stay execution of that judgment for possession. That judgment has been executed and carried into effect. There is now, in my opinion, no reason to interrupt the further steps that are consequent upon the execution of that judgment.

Reduced to its essentials, Mr Velissaris’ argument in favour of the order which he now seeks to interrupt the auction can be described as being that he wishes to settle the whole dispute which has yielded the liquidation of Maryvell Investments. To do that he will borrow the amount of money that is necessary to settle proceedings. That money, he says, will come, but it is not available to him immediately. It is not available to him immediately because, so he asserts, valuers (upon whose opinion lenders would depend are unable to value the property that would constitute security for the loan) cannot conduct that valuation immediately. He contends that he would be in a position in two or at worst three months to provide whatever sum of money is necessary to settle the litigation.

In addition, Mr Velissaris points to his personal circumstances as pressing in favour of his settling the litigation and having time to do so. He points to his serious health difficulties. He points to the time, effort and personal and financial investment he has made in the business previously conducted on the premises. He points to the family difficulties that are attendant upon continuation of the litigation. He asserts, as he has asserted throughout this litigation, that at first instance on appeal to the Court of Appeal and in applications in this Court that he has been denied justice.

It is important, in my opinion, not to lose sight of the fact that Mr Velissaris has had a considerable period during which any compromise of the dispute which underpins the judgment which has since been carried into execution might have been effected. Now, he would seek still further time of up to three months in which to effect such a settlement. There is, in my opinion, no sufficient cause shown to grant that relief.

Nor am I persuaded that any order should be made by this Court which would require the liquidator to furnish Mr Velissaris with the information which he seeks in his summons. This Court is not the court having immediate supervision of the winding up of Maryvell Investments Pty Limited. Provision of information of a kind which Mr Velissaris seeks from the liquidator is, in my opinion, not sufficiently connected with the matters which are put in issue by the two applications for special leave to appeal, and provision of that information is not sufficiently connected with the matters that would be in issue if special leave to appeal were to be granted in either of those applications, to warrant this Court making orders of the kind he seeks.

Moreover, it should be said that material relied upon by Mr Velissaris in support of his application for such orders is not such as persuades me that sufficient reason is shown to make orders of the kind that he seeks.

For these reasons there will be orders in matter M102 of 2007 that the application for special leave to appeal not be deemed abandoned. The summons of 29 October 2007 is otherwise dismissed. The applicant will pay the respondent’s costs of and incidental to the applications made by that summons and any costs thrown away by reason of the deemed abandonment of the application for special leave.

AT 11.17 AM THE MATTER WAS CONCLUDED