Hocking v Yeo (Trustee)

FEDERAL COURT OF AUSTRALIA

Hocking v Yeo (Trustee) [2017] FCA 1307

Appeal from:

Yeo & Rambaldi v Arifovic & Anor [2017] FCCA 604

File number(s):

VID 461 of 2017

Judge(s):

DAVIES  J

Date of judgment:

10 November 2017

Catchwords:

COSTS – appeal from Federal Circuit Court judgment that the applicant had a 32.52% beneficial interest in property, as conceded by the trustee, against the applicant’s claim of 100%; trustee conceded a 50% interest during a case management hearing prior to hearing of the appeal; appellant sought to overturn Federal Circuit Court’s orders as to costs on the basis that the decision as to a 32.52% interest “should never have been made”; costs of the appeal 

Legislation:

Federal Court Rules 2011 (Cth)

Cases cited:

Allen v Synder [1977] 2 NSWLR 68

Baumgartner v Baumgartner (1987) 164 CLR 137

Caverley v Green (1984) 155 CLR 250

Cummins v Cummins (2006) 227 CLR 278

Green v Green (1989) 17 NSWLR 343 at 355

Shepherd v Doolan & Ors [2005] NSWSC 42

Shord v Commissioner of Taxation [2017] FCAFC 167

Yeo & Rambaldi v Arifovic and Anor [2017] FCCA 604

Yeo & Rambaldi (as trustees of the bankrupt estate of Arifovic ) v Arifovic & Anor (No.2) [2017] FCCA 1189

Date of hearing:

27 September 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Commercial and Corporations

Sub-area:

General and Personal Insolvency

Category:

Catchwords

Number of paragraphs:

14

Counsel for the Appellant:

Mr J Kohn (Pro Bono)

Counsel for the Respondents:

Mr CT Moller

Solicitor for the Respondents:

Macpherson Kelley

ORDERS

VID 461 of 2017

BETWEEN:

TARA SUZANNE HOCKING

Appellant

AND:

ANDREW REGINALD YEO & GESS MICHAEL RAMBALDI (AS TRUSTEES OF THE BANKRUPT ESTATE OF BROCK SIMON ARIFOVIC)

Respondents

JUDGE:	DAVIES  J
DATE OF ORDER:	10 NOVEMBER 2017

THE COURT DECLARES BY CONSENT THAT:

1.The Appellant has a 50% interest in the property located at 32 Pimpala Avenue, Seaford, Victoria.

THE COURT ORDERS THAT:

2.In lieu of “32.52%” in Order 3(d) of the orders of the Federal Circuit Court of Australia pronounced 19 April 2017, there be replaced “50%”.

3.The appeal be otherwise dismissed.

4.The Appellant pay the Respondents’ costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DAVIES J:

1. The respondents (“the respondents” or “the trustees”) are the trustees of the bankrupt estate of Brock Simon Arifovic (“the bankrupt”) and the appellant is the de facto spouse of Mr Arifovic.  The bankrupt’s assets include property located at 32 Pimpala Avenue, Seaford, Victoria (“the property”) of which he is the sole registered proprietor.  In proceedings commenced by the trustees in the Federal Circuit Court of Australia (“FCC”) for orders for the vacant possession and sale of the property, the trustees accepted that Ms Hocking had acquired a 32.52% beneficial interest in the property pursuant to a constructive trust having regard to the financial contributions she had made, whereas Ms…