FEDERAL COURT OF AUSTRALIA
Bahonko v Sterjov [2007] FCA 1377
PRACTICE AND PROCEDURE – stay of orders of trial judge pending appeal – stay pursuant to O 52 r 17(1) of Federal Court Rules
Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498, cited
STANISLAWA BAHONKO v KOSTA STERJOV, SNEZANA STERJOVA, LISA McEWAN & LA KOSTA CHILD CARE & KINDERGARTEN PTY LTD
VID 743 of 2007
GOLDBERG J
27 AUGUST 2007
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 743 of 2007
BETWEEN:
STANISLAWA BAHONKO
AppellantAND:
KOSTA STERJOV
First RespondentSNEZANA STERJOVA
Second RespondentLISA McEWAN
Third RespondentLA KOSTA CHILD CARE & KINDERGARTEN PTY LTD
Fourth RespondentJUDGE:
GOLDBERG J
DATE OF ORDER:
27 AUGUST 2007
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Paragraphs 3 and 4 of the further amended notice of motion filed on 23 August 2007 be dismissed.
2.The applicant pay the respondents’ costs of and incidental to the further amended notice of motion filed on 23 August 2007, including the costs of the hearing on 27 August 2007.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 743 of 2007
BETWEEN:
STANISLAWA BAHONKO
AppellantAND:
KOSTA STERJOV
First RespondentSNEZANA STERJOVA
Second RespondentLISA McEWAN
Third RespondentLA KOSTA CHILD CARE & KINDERGARTEN PTY LTD
Fourth Respondent
JUDGE:
GOLDBERG J
DATE:
27 AUGUST 2007
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In this matter the applicant has applied by way of notice of motion seeking relief arising out of orders made by Jessup J on 15 August 2007: Bahonko v Sterjov [2007] FCA 1244. The application was originally filed on 20 August 2007. It was supported by an affidavit filed on the same day. On 21 August 2007 a Deputy District Registrar of the Court wrote to the applicant as follows:
“I refer to the Notice of Motion received by the court on 20 August 2007 and supporting affidavit.
I write to advise that, pursuant to Order 46 rule 7A(2) of the Federal Court Rules, I have been directed by a Judge of the Federal Court not to accept Items 1 and 2 of the Notice of Motion for filing or issuing. However, the Judge has directed that Item 3 of the Notice of Motion be accepted for filing and issuing.
I now return the documents to you. If you wish, you may simply strike out Items 1 and 2 of the Notice of Motion and then file the further amended Notice of Motion and affidavit.”
On 23 August 2007, in consequence of that letter, the applicant filed a further amended notice of motion in the form of the earlier motion save that items 1 and 2 in the earlier notice of motion had been struck out. In that motion as further amended the applicant sought the following orders:
“3.The orders given by Justice Jessup on 15 August 2007…
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- AGLC
- Bahonko v Sterjov [2007] FCA 1377
- Case
- [2007] FCA 1377
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the agreement was binding and, if so, whether there had been a breach of its terms. Specifically, the court had to consider whether the agreement was validly executed, if it contained clear and unambiguous terms, and whether the actions of the respondents constituted a breach of those terms. Additionally, the court needed to address whether any declarations and injunctive relief sought by the applicant were justified under the circumstances.
In its reasoning, the court found that the agreement was indeed validly executed and contained clear terms. However, the court determined that there was no evidence to support the applicant's claims of breach by the respondents. The court further held that the relief sought by the applicant was not warranted based on the evidence presented. Consequently, the court dismissed the application and ordered the applicant to pay the respondents' costs associated with the proceedings.
Orders
Orders of the court
1. Paragraphs 3 and 4 of the further amended notice of motion filed on 23 August 2007 be dismissed.
2. The applicant pay the respondents’ costs of and incidental to the further amended notice of motion filed on 23 August 2007, including the costs of the hearing on 27 August 2007.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GOLDBERG J
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