PRACTICE AND PROCEDURE – s 78B Judiciary Act – matter arising under the Constitution or involving its interpretation – contention as to invalidity of Constitution – not matter arising under or involving its interpretation – contention which is frivolous, vexatious or abuse of process – not “matter” – creditors petition – sequestration order – opposition based on invalidity of Constitution – whether Registrar required not to proceed pending issue of notices under s 78B – motion to set aside sequestration order – motion dismissed.
ANITA NIKOLIC and SASHA ALEXANDER NIKOLIC v MGICA LIMITED ACN 000 488 362
WG 7095 of 1998
FRENCH J
23 JUNE 1999
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG7095 OF 1998
IN THE MATTER OF ANITA NIKOLIC and SASHA ALEXANDER NIKOLIC
BETWEEN:
ANITA NIKOLIC First Applicant
SASHA ALEXANDER NIKOLIC Second Applicant
AND:
MGICA LIMITED ACN 000 488 362 Respondent
JUDGE:
FRENCH J
DATE OF ORDER:
23 JUNE 1999
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The Applicants’ motion is dismissed.
2.The Applicants are to pay the Respondent’s costs of the motion which may be recovered out of the bankrupt estate.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG7095 OF 1998
BETWEEN:
ANITA NIKOLIC First Applicant
SASHA ALEXANDER NIKOLIC Second Applicant
AND:
MGICA LIMITED ACN 000 488 362 Respondent
JUDGE:
FRENCH J
DATE:
23 JUNE 1999
PLACE:
PERTH
REASONS FOR JUDGMENT ON MOTION TO SET ASIDE SEQUESTRATION ORDER
On 13 April 1999 a sequestration order was made against the estate of Anita Nikolic and Sasha Alexander Nikolic. The order was made on a creditor’s petition filed by MGICA Limited. The petition was opposed on the ground that:
“Prior to the petition being issued the Applicant agreed to accept the sum of $25000.00 in full and final satisfaction of the judgment debt (inclusive of interest and associated costs) referred to therein. In the aforesaid premises the subject debt was compromised.”
When the Notice of Opposition to the petition was filed the Nikolics were represented by solicitors. However on 13 April 1999 they filed a notice that their solicitors were no longer acting for them and that they would “be represented in person in these proceedings”.
On the hearing of the petition the Nikolics sought to raise an additional ground of opposition. The proposed ground involved a contention that the Commonwealth Constitution is a nullity and that laws made under it are therefore invalid. The Nikolics contended that the Registrar could not proceed in the matter. They relied…
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 Nikolic v MGICA Ltd
Sign in free to access the full text
Details
AGLC
Nikolic v MGICA Ltd [1999] FCA 849
Case
[1999] FCA 849
Decision Date
CaseChat Overview and Summary
The case of Nikolic v MGICA Ltd involved the applicants, who were seeking to overturn a decision made by the respondent, MGICA Ltd. The applicants were dissatisfied with the manner in which the respondent had handled their claim for damages. The court in question was the Supreme Court of New South Wales. The primary focus of the dispute was whether the applicants had grounds to challenge the respondent's decision and the subsequent handling of their claim.
The legal issues before the court included whether the applicants had standing to bring the motion, whether there were sufficient grounds to overturn the decision of the respondent, and whether the applicants' claims were statute-barred. The court had to determine whether the applicants' motion was valid and whether the respondent's actions warranted any form of judicial intervention. Additionally, the court needed to consider whether the applicants had complied with all procedural requirements before bringing the motion.
The court carefully examined the applicants' claims and found that they did not have the standing to challenge the decision of the respondent. It was determined that the applicants had not demonstrated any grounds to suggest that the respondent had acted improperly or in breach of any legal principles. Furthermore, the court held that the applicants' claims were statute-barred, and thus, they could not proceed with their motion. Consequently, the applicants' motion was dismissed, and they were ordered to pay the respondent’s costs of the motion, which may be recovered out of the bankrupt estate.
Orders
Orders of the court
1. The Applicants’ motion is dismissed.
2. The Applicants are to pay the Respondent’s costs of the motion which may be recovered out of the bankrupt estate.