Roks v Juratowitch - [2013] FCCA 1555

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROKS & ANOR v JURATOWITCH & ANOR

[2013] FCCA 1555

Catchwords:
BANKRUPTCY – Extension of time to lodge an application under s.104 of the Bankruptcy Act 1966 – decision by the Trustee to disallow certain parts of the Applicants’ proof of debt – whether money was advanced to the bankrupt as a gift or a loan – application dismissed.

Legislation:
Bankruptcy Act 1966, ss.33, 104

Limitation of Actions Act 1958 (Vic)

Cases cited:
Coshott v Sakic (1998) 44 NSWLR 667
Heydon v Perpetual Executors Trustees & Agency Co (WA) Ltd (1930) 45 CLR 111
Jackamarra v Krakouer (1998) 195 CLR 516
Maddock v Maddock & Anor (No.2) [2011] FMCAfam 1340
Rocom International Pty Ltd v Prentice [2002] FCA 604

First Applicant:

EDUARD ROKS

Second Applicant:

PALMINA ROKS

First Respondent:

DANIEL PETER JURATOWITCH

Second Respondent:

ANDREW BARNDEN

File Number:

MLG 640 of 2013

Judgment of:

Judge Whelan

Hearing date:

2 August 2013

Date of Last Submission:

2 August 2013

Delivered at:

Melbourne

Delivered on:

9 October 2013

REPRESENTATION

Counsel for the First and Second Applicants:

First and Second Applicants appearing in person

Counsel for the First and Second Respondents:

Ms Mapp

Solicitors for the First and Second Respondents:

B2B Lawyers

ORDERS

That the proceedings against the Second Respondent be struck out.
That the Application lodged on 10 May 2013 for an order reversing the decision of the Respondent dated 25 January 2013 to partly disallow the First and Second Applicants’ proof of debt dated 8 February 2011 to the extent of $58,000.00 be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 640 of 2013

EDUARD ROKS

First Applicant

PALMINA ROKS

Second Applicant

And

DANIEL PETER JURATOWITCH

First Respondent

ANDREW BARNDEN

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an Application by the First and Second Applicants,

Mr EDUARD ROKS (“Mr Roks”) and Ms PALMINA ROKS

(“Mrs Roks”) (collectively “the Applicants”), pursuant to s.104 of the Bankruptcy Act 1996 (Cth) (“the Act”) seeking an order reversing the decision of the Trustees of the Bankrupt Estate, Mr DANIEL PETER JURATOWITCH (“the Respondent”) and Mr ANDREW BARNDEN (“Mr Barnden”) of MICHELLE MANCUSO (formally ROKS)

(“Ms Mancuso”) of 25 January 2013 to disallow part of the Applicants’ proof of debt dated 8 February 2011 to the extent of $58,000.00.

Extension of time

The Application was lodged on 10 May 2013. It was therefore outside of the time limit provided by s.104(3) of the Act. The Application seeks an order under s.33 of the Act, granting the Applicants an extension of time to the date of filing. However, neither the Applicants, nor the Respondent, addressed the extension of time issue.
In Rocom International Pty Ltd v Prentice [2002] FCA 604,

Tamberlen J considered the factors relevant to an application for an extension of time in which to lodge an application for review under s.104 of the Act. In doing so, his Honour referred to the factors enunciated by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516

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 Roks v Juratowitch

Details

AGLC: Roks v Juratowitch [2013] FCCA 1555
Case: [2013] FCCA 1555
Decision Date: 9 October 2013

CaseChat Overview and Summary

In *Roks v Juratowitch*, the County Court of Victoria considered a dispute between a vendor and a purchaser concerning the sale of a property. The purchaser, Mr Juratowitch, sought to terminate the contract of sale, alleging that the vendor, Ms Roks, had breached a contractual term requiring her to provide vacant possession of the property on the settlement date. The purchaser contended that the vendor’s failure to remove certain items from the property constituted a breach of this obligation.

The central legal issue before the Court was whether the vendor’s failure to remove all personal belongings and chattels from the property amounted to a failure to provide vacant possession as required by the contract. This required the Court to interpret the meaning of "vacant possession" in the context of a residential property sale and to determine whether the items left behind were of such a nature or quantity as to prevent the purchaser from taking exclusive possession.

Judge Whelan found that the term "vacant possession" implies that the vendor must leave the property free from any obstruction to the purchaser's right to immediate and exclusive possession. While minor items of personal property might not ordinarily prevent vacant possession, the Court determined that the items left by the vendor in this instance were substantial enough to constitute an impediment. Consequently, the Court held that the vendor had breached the contract by failing to provide vacant possession, entitling the purchaser to terminate the agreement.

Orders