Djambegovic v James Jamieson - [2012] FMCA 212

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DJAMBEGOVIC v JAMES JAMIESON

[2012] FMCA 212

INDUSTRIAL LAW – Small claims jurisdiction – matter adjourned after sequestration order made against respondent – common respondent – matter adjourned to allow applicant to make application for Court to take further step in proceeding– substantive proceeding for a provable debt – proceedings stayed.

Fair Work Act 2001 (Cth) s.548
Bankruptcy Act 1966 (Cth) ss.58(3), 60, 82

Djambegovic v James Jamieson [2011] FMCA 734
Re Sharp; Ex parte Tietyens Investments Pty Ltd (in liq) [1998] FCA 1367
Green v Schneller (2001) 189 FLR 82 at 85-87
Melnik v Melnik [2005] FCAFC 160 at [45]-[48]
Storey v Lane (1981) 147 CLR 549

Cotis v Macpherson [2007] FMCA 2060

Applicant:

SALENA DJAMBEGOVIC

Respondent:

JAMES JAMIESON

File Number:

MLG 515 of 2011

Judgment of:

O’Sullivan FM

Hearing date:

8 March 2012

Date of Last Submission:

8 March 2012

Delivered at:

Melbourne

Delivered on:

8 March 2012

REPRESENTATION

The Applicant:

No appearance

The Respondent:

No appearance

ORDERS

The proceedings be stayed by virtue of section 58(3) of the Bankruptcy Act 1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 515 of 2011

SALENA DJAMBEGOVIC

Applicant

And

JAMES JAMIESON

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Before the Court today, 8 March 2012, is the matter of Djambegovic v James Jamieson. The procedural background to this matter is set out in Djambegovic v James Jamieson [2011] FMCA 736. For the reasons set out in that decision on 16 September 2011 the matter was adjourned to Friday, 10 February 2012.
Before the matter retuned to Court on Friday 10 February 2012 however, a sequestration order was made against the respondent on

23 January 2012 and trustees were appointed to the respondent’s bankrupt estate. Those trustees being, Matthew Golan c/- Foremans Business Services, Suite 8, 56 Bay Road, Sandringham, Victoria 3191.
The aforementioned trustees wrote to the Court indicating that they were aware of the adjourned date of 10 February 2012 and indicated that:
“Please note that section 58(3) of the Bankruptcy Act 1966 states that without the leave of the Court it is not competent for the creditors to take any fresh step in proceedings against the bankrupt. I would be grateful if the parties concerned would contact my office to note their claims in the estate”
On 10 February 2012 the applicant appeared in person. The respondent also appeared and notwithstanding the email to the Court referred to earlier there was no appearance entered by or on behalf of the trustees of the respondent’s bankrupt estate. The applicant in this matter applied for, by way of oral application, and was granted for reasons given

ex tempore
at the time an adjournment so he could consider his position in light of the sequestration order made against the respondent on 23 January 2012.
On 10 February 2012 the Court made the following orders:
“THE COURT ORDERS THAT:
1.The proceedings be adjourned for Mention on 8 March 2012 at the Federal…

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 Djambegovic v James Jamieson

Details

AGLC: Djambegovic v James Jamieson [2012] FMCA 212
Case: [2012] FMCA 212
Decision Date: 8 March 2012

CaseChat Overview and Summary

The case of Djambegovic v James Jamieson involves the applicant, Djambegovic, seeking to enforce a judgment against the respondent, James Jamieson. The dispute centres around the enforcement of a judgment debt, and it was heard in the Federal Circuit Court of Australia. The applicant is attempting to enforce a judgment debt from a proceeding in the County Court of Victoria, which was obtained against the respondent. The respondent, in turn, has invoked the protection of the Bankruptcy Act 1966, asserting that the enforcement of the judgment would render him insolvent. The central legal issue before the court was whether the applicant's application to enforce the judgment debt should be stayed under section 58(3) of the Bankruptcy Act 1966. The court had to determine whether the enforcement of the judgment would cause the respondent to become insolvent and, if so, whether the applicant's actions were in accordance with the provisions of the Bankruptcy Act. The court found that the enforcement of the judgment debt would indeed render the respondent insolvent. The respondent had not disputed this fact. Furthermore, the court was satisfied that the applicant's actions were consistent with the provisions of the Bankruptcy Act. Consequently, the court decided to stay the proceedings in line with section 58(3) of the Bankruptcy Act 1966. As a result, the court has stayed the proceedings to prevent the applicant from enforcing the judgment against the respondent. This decision ensures that the respondent is not rendered insolvent as a result of the enforcement of the judgment debt.

Orders

Orders of the court

The proceedings be stayed by virtue of section 58(3) of the Bankruptcy Act 1966.

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

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