Jacks v Jakimowicz - [2014] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0129

JOHN MICHAEL JACKS	Appellant
	v
PATRICIA ANNE JAKIMOWICZ
	Respondent

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JUDGES:	MAXWELL ACJ, MANDIE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Decided on the papers
DATE OF JUDGMENT:	17 June 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 120
JUDGMENT APPEALED FROM:	Jackimowicz v Jacks (Unreported, County Court of Victoria, Judge Lacava, 15 August 2011)

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BANKRUPTCY – Appeal against an order by a County Court judge staying proceeding Appellant undischarged bankrupt – Not thereby precluded from bringing proceeding – Whether money claimed was received as worker’s compensation and therefore not divisible property for the purposes of the bankruptcy – Question cannot be determined on summary application – Bankruptcy Act 1966 (Cth) s 116.

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APPEARANCES:	Counsel	Solicitors
No appearances by leave of the Court

MAXWELL ACJ:

I have had the advantage of reading in draft the reasons for judgment of Mandie JA. I agree with the orders which his Honour proposes, for the reasons which he gives.

Unusually, this appeal has been decided purely on the basis of the written submissions. This course was proposed by the parties themselves, for the saving of costs, and they should be commended for their initiative. Self-evidently, it is an efficient and cost-effective means of disposing of an appeal.

MANDIE JA:

Introduction

The appellant, Mr Jacks, filed a proceeding in the County Court of Victoria at Melbourne by writ dated 31 March 2011. In his statement of claim, the appellant sought damages against the respondent (then defendant) and certain declarations and other orders in relation to land situated at, and known as, 275 Tandabaroo Road, Willowmavin (‘the Willowmavin property’). At the time of filing the writ the appellant was a bankrupt, a sequestration order having been made against him on a creditor’s petition on 14 April 2009. By summons dated 24 June 2011, the respondent (then defendant) applied to the County Court for an order that the proceeding be dismissed, alternatively that the proceeding be permanently stayed. On 15 August 2011, a County Court judge ordered that the proceeding be stayed. The appellant, by leave, appeals against that order.

Procedural and factual background

In his statement of claim in the County Court proceeding, the appellant alleged:

(a)at all relevant times until about April 2003, the respondent was in a domestic relationship with the appellant’s brother Victor;
(b)on or about 12 August 1985, the respondent and Victor were registered as joint proprietors of a property in Preston and on or about 20 August 1993 the respondent and Victor gave a mortgage over the Preston property to the National Australia Bank Ltd (‘NAB’) to secure the repayment of a loan;
(c)in or about December 1995, the appellant received a worker’s compensation payout of about $358,000;
(d)in or about December 1995, the appellant on the one hand and the respondent and Victor on the other, entered into an agreement under which the respondent and Victor agreed to sell and the appellant agreed to buy the…

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 Jacks v Jakimowicz

Details

AGLC: Jacks v Jakimowicz [2014] VSCA 120
Case: [2014] VSCA 120
Decision Date: 17 June 2014

CaseChat Overview and Summary

Jacks, an undischarged bankrupt, sought to recover a debt from Jakimowicz, claiming the money was not received as workers' compensation and hence was divisible property under the Bankruptcy Act 1966. The County Court judge stayed the proceeding due to the appellant's bankruptcy status, prompting an appeal to the court. The central legal issue was whether Jacks, being an undischarged bankrupt, could be precluded from pursuing a debt claim that potentially did not constitute divisible property.

The court examined the interplay between the appellant's bankruptcy status and the nature of the debt claimed. It held that being an undischarged bankrupt did not automatically bar Jacks from initiating the proceeding. The court also noted that the question of whether the money received was workers' compensation and thus not divisible property could not be resolved on a summary application. It found that the determination of this issue required a more comprehensive examination, which the County Court had not undertaken.

Ultimately, the court found that the appellant was not precluded from bringing the proceeding by virtue of being an undischarged bankrupt. The matter of whether the debt was workers' compensation and, therefore, not divisible property was remanded to the County Court for further examination. The appeal was allowed, and the stay was set aside. The case was to be returned to the County Court for a more detailed examination of the nature of the debt in question.

Orders