Banov v Ciric
[2008] FMCA 353
•11 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BANOV v CIRIC | [2008] FMCA 353 |
| BANKRUPTCY – Adjournment of petition – application for interim trustee and examination – dismissed due to inadequacy of evidence. |
| Bankruptcy Act 1966 (Cth), ss.50, 50(1), 50(2), 52 Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), rr.4.04(1)(a), 4.06 |
| Applicant: | DANA BANOV |
| Respondent: | BRANISLAV CIRIC |
| File Numbers: | SYG3592 of 2006 and SYG2009 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 11 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr P Beazley |
| Solicitors for the Respondent: | Beazley Singleton, Lawyers |
ORDERS
The petition in SYG3592 of 2006 is adjourned for hearing on 1 April 2008 at 11am.
The parties’ costs in relation to that proceeding are reserved.
The interim application in SYG2009 of 2007 filed on 11 December 2007 is dismissed.
The application in SYG2009 of 2007 is dismissed.
The applicant in SYG2009 of 2007 must pay the costs of the respondent to that application as agreed or taxed pursuant to the Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3592 of 2006
SYG2009 of 2007
| DANA BANOV |
Applicant
And
| BRANISLAV CIRIC |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
Matter number SYG3592 of 2006 is a creditor’s petition filed by Ms Banov, which seeks a sequestration order against Mr Ciric based upon his failure to pay a debt arising from a judgment of the District Court on 27 September 2006 in the sum of $150,000 plus interest in the sum of $34,804.11. The total debt of $184,804.11 was also the subject of a bankruptcy notice, which was served and not complied with, thereby giving rise to the act of bankruptcy which is relied upon.
A notice of opposition has been filed which does not dispute the debt, nor the substantive matters upon which a sequestration order may be ordered by the Court under s.52 of the Bankruptcy Act 1966 (Cth). However, it sought the adjournment of the hearing of the petition, upon expectations by Mr Ciric that he will be able to pay the debt from sources which have been variously presented to the Court over a period of many months, during which there have been many adjournments. In particular, the Court has been informed of defamation proceedings brought by Mr Ciric, his partner and her sister (“the Gacic sisters”), in which damages for personal injury are claimed, as well as economic losses arising from a business which is alleged to have been destroyed by the defamatory publication. The present state of those proceedings is unclear on the current evidence.
The adjournment of the petition is also sought today by Mr Ciric, upon evidence that funds to pay the debt relied upon in the petition will be raised by way of arrangements which are hoped to come to fruition by the end of this month.
While the petition has been before the Court, there was an attempt to mediate the dispute in relation to the payment of the money owing to Ms Banov with both Mr Ciric and the Gacic sisters, who themselves are also subject to bankruptcy proceedings. That attempt occupied a Registrar at a mediation session on 15 November 2007, but the agreement which was thought to have been reached at the mediation has not been given effect. Ms Banov later disputed whether she was bound by the agreement, but this dispute has now become academic. Ms Banov no longer asks the Court to make a ruling to this effect. Nor are the terms of the agreement, or other circumstances concerning the mediation agreement, now relied upon by Mr Ciric in opposition to her petition.
At a directions hearing on 17 December 2007, I listed the petition for hearing today, with other applications concerning Mr Ciric and the Gacic sisters to which I shall refer to further.
Ms Banov accepts that her petition is unable to proceed today, because she has not filed affidavits required by Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth) r.4.04(1)(a) and, more importantly, r.4.06. It is possible that the former affidavit might be dispensed with, since it appears to be uncontroversial that the act of bankruptcy has occurred, but the latter affidavits are indispensable. Ms Banov, therefore, also applies for an adjournment of the petition today.
A supporting creditor has appeared today, and does not oppose an adjournment. In all those circumstances, I propose to adjourn the petition for hearing on 1 April 2008 before me at 11 am. I shall reserve costs in relation to that adjournment and today’s hearing.
Also listed today are two applications which were filed by Ms Banov in SYG2009 of 2007. She commenced this proceeding as an application for orders under s.50 of the Bankruptcy Act for the appointment of the Official Trustee to take interim control of Mr Ciric’s property. The application also seeks consequential orders under s.50(2) for the examination of Mr Ciric and the Gacic sisters. It specifically asks for a direction that the Official Trustee take control of Mr Ciric’s contingent assets in his defamation proceedings.
The affidavit in support of this application has been ruled inadmissible by me, because it consists of two generalisations of events without any supporting evidence. Ms Banov has presented no evidence to the Court indicating that there is a risk to creditors of the dissolution of assets which might form part of the bankrupt estate, including any proceeds of the defamation proceedings, over the period until the hearing of the petition.
I am not satisfied on the evidence before me that it is in the interests of the creditors to appoint the Official Trustee to take control of Mr Ciric’s property at this point in time. Taking into account the long period in which this application has been outstanding, the ample opportunities given to Ms Banov to present admissible evidence in support, and its current inadequacy of presentation, I consider that it is appropriate today to dismiss the application under s.50 of the Bankruptcy Act with costs.
Contrary to Ms Banov’s submissions, it is not possible for the Court to order under s.50(2) the examination of the Gacic sisters, in the absence of a direction to the Official Trustee made under s.50(1). The application for their examination should therefore also be dismissed.
Also in SYG2009 of 2007, is an interim application filed by Ms Banov on 11 December 2007 seeking “recision of the heads of agreement signed during the [mediation] conference on 15th November 2007”. Ms Banov now concedes that it is unnecessary for her to seek that relief. She therefore consents to that application being dismissed, and I propose to do so.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 25 March 2008
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