Bezina v Stojic - [2018] FCCA 1310

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEZINA v STOJIC

[2018] FCCA 1310

Catchwords:
BANKRUPTCY – Application to set aside two bankruptcy notices – whether each of the bankruptcy notices issued electronically had judgment attached to them – whether judgment on the basis of which one of the bankruptcy notices was issued was a nullity – whether any abuse of process in applying for and serving the bankruptcy notices – application dismissed.

Legislation:

Bankruptcy Act 1966 (Cth), s.40(1)(g)

Bankruptcy Regulations 1996 (Cth), regs. 4.01, 4.02
Legal Profession Act 2004 (NSW), ss.353(1), 364, 368, 369

Cases cited:

Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144

Kassem & Secatore v Koutavas [2012] NSWSC 236
Ritson v Commissioner of Police, New South Wales Police Force [2018] FCCA 916
Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181
Yarranova Pty Ltd v Shaw (No 2) [2014] FCA 616

Applicant:

JOSIP BEZINA

Respondent:

SIMON STOJIC

File Number:

SYG 2268 of 2017

Judgment of:

Judge Manousaridis

Hearing date:

7 May 2018

Date of Last Submission:

7 May 2018

Delivered at:

Sydney

Delivered on:

25 May 2018

REPRESENTATION

Counsel for the Applicant:

Mr J Johnson

Solicitors for the Applicant:

Lexes Lawyers

Counsel for the Respondent:

Mr S Golledge

Solicitors for the Respondent:

Boyd House & Partners

ORDERS

The application is dismissed.
Subject to order 3 the applicant pay the respondent’s costs as agreed or taxed.
The parties have liberty to apply within 14 days of the pronouncement of these orders to vary or discharge order 2.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2268 of 2017

JOSIP BEZINA

Applicant

And

SIMON STOJIC

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application for declarations in relation to two bankruptcy notices and an order that the bankruptcy notices be set aside.
The applicant, Mr Bezina, claims that both bankruptcy notices are invalid because the judgments on the basis of which they were purportedly issued were not attached to the bankruptcy notices as required by reg.4.01 and reg.4.02 of the Bankruptcy Regulations 1996 (Cth) (Regulations). Mr Bezina also claims that one of the bankruptcy notices is invalid for the additional reason that it has been issued on the basis of an irregular judgment. Finally, Mr Bezina claims the respondent, Mr Stojic, applied for the issue of the bankruptcy notices for the purpose of placing illegitimate pressure on him and, therefore, the issue of the bankruptcy notices constitutes an abuse of process.
Before I consider the grounds on which Mr Bezina claims the bankruptcy notices are invalid and an abuse of process, it will be necessary to set out the nature of the judgments on the basis of which, and the circumstances in which, the bankruptcy notices were issued.

The judgments

The bankruptcy notices were issued in relation to two judgments Mr Stojic obtained from the Supreme Court of New South Wales on 8 March 2016 against Mr Bezina, one for $167,737.65, and the other for $6,339.91.
The judgment for $167,737.65 reflects the amount stated in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bezina v Stojic

Details

AGLC: Bezina v Stojic [2018] FCCA 1310
Case: [2018] FCCA 1310
Decision Date: 25 May 2018

CaseChat Overview and Summary

In *Bezina v Stojic*, the County Court of Victoria considered a dispute concerning alleged breaches of a contract for the sale of a business. The applicant, Mr. Bezina, sought to recover damages from the respondent, Mr. Stojic, for alleged misrepresentations and breaches of warranty in relation to the sale of a café.

The central legal issues before the court were whether the respondent had made representations that were false and misleading, and whether these representations constituted breaches of warranty under the sale agreement. Specifically, the court had to determine if the financial information provided by the respondent regarding the café's turnover and profitability was accurate, and if the applicant had relied on this information to his detriment.

Judge Manousaridis found that the respondent had made representations concerning the café's turnover that were not supported by the evidence. The court applied principles of contract law, including the law of misrepresentation and breach of warranty, to assess the parties' obligations and the applicant's entitlement to damages. The court concluded that the applicant had established a breach of contract and awarded damages to compensate him for the losses incurred as a result of the misrepresentations.

Orders