Rotstein & Associates v Slaveski

Case [2010] FCA 493

FEDERAL COURT OF AUSTRALIA

Rotstein & Associates v Slaveski [2010] FCA 493

Citation: Rotstein & Associates v Slaveski [2010] FCA 493
Parties: ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063)  v LJUPCO SLAVESKI
File number(s): VID 567 of 2009
Judge: BROMBERG J
Date of judgment: 20 May 2010
Catchwords: PRACTICE AND PROCEDURE – Bankruptcy – Instalment order made on judgment debt – Whether hearing of creditor’s petition should be adjourned
Legislation: Bankruptcy Act 1966 (Cth) s 33, 33(1)(a), 52(5)
Judgment Debt Recovery Act (1984) (Vic) s 9
Cases cited: Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Re Arcuri Bankrupt; ex parte Master Lease and Rental Service Pty Ltd Creditor Unreported No. QB 1438 of 1996
Field v Commercial Banking Co of Sydney Ltd (1978) 37 FLR 341
Re Lynch, Ex parte Depela Pty Ltd (in liq) (1998) 81 FCR 444;
Re Padagas, Ex parte Carrier Air Conditioning Pty Ltd (1977) 30 FLR 170;
Re Pollack, Ex parte Deputy Commissioner of Taxation (1991) 32 FCR 40;
Rozenbes v Kronhill (1956) 95 CLR 407
Slaveski v Rotstein & Associates Pty Ltd [2009] VSC 111
Slaveski v Rotstein & Associates [2009] FMCA 443
Slaveski v Rotstein & Associates Pty Ltd [2009] FCA 1428
Date of hearing: 9 February 2010
Date of last submissions: 21 April 2010
Place: Melbourne
Division: GENERAL DIVISION
Category: CATCHWORDS
Number of paragraphs: 24
Counsel for the Applicant: Ms K Milman
Counsel for the Respondent: Respondent appeared in person assisted by Ms S Angeleska Slaveski
Solicitor for the Applicant: Rotstein Lockwood Reddy Lawyers Pty Ltd

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 567 of 2009
BETWEEN:

ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063) 
Applicant
AND:

LJUPCO SLAVESKI
Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

20 MAY 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The matter be listed for a directions hearing on 2 February 2011.

2.The Respondent’s application that the creditor’s petition be dismissed be adjourned to the hearing of the creditors petition.

3.The Applicant have liberty to apply for the listing of the creditor’s petition for hearing should the Respondent fail to comply with the instalment order made by Smith M on 27 January 2010.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 567 of 2009
BETWEEN:

ROTSTEIN & ASSOCIATES PTY LTD (ACN 117 539 063) 
Applicant
AND:

LJUPCO SLAVESKI
Respondent

JUDGE:

BROMBERG J

DATE:

20 MAY 2010

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. In this matter the applicant (“Rotstein”) has presented a creditor’s petition and seeks a sequestration order against the estate of the respondent (“Slaveski”).  The creditor’s petition is founded upon an alleged debt in the sum of $7,183.56. 

  2. Slaveski is not legally represented and Ms Angeleska Slaveski represents Slaveski as a McKenzie friend.  Ms K…

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AGLC
Rotstein & Associates v Slaveski [2010] FCA 493
Case
[2010] FCA 493
Decision Date

CaseChat Overview and Summary

Rotstein & Associates, a firm of solicitors, pursued Mr Slaveski, a bankrupt, for an unpaid legal bill. The matter was before the Federal Circuit and Family Court of Australia. The central dispute revolved around whether the court should proceed with the hearing of a creditor's petition filed by Rotstein & Associates, given that Mr Slaveski had not complied with an instalment order requiring him to pay a portion of his judgment debt.

The court was tasked with determining whether the creditor's petition should be dismissed outright or if the hearing should be adjourned. The legal issue at hand was whether the failure to comply with the instalment order mandated the dismissal of the creditor's petition, or if the court had the discretion to adjourn the hearing and grant further time for compliance. This involved interpreting the relevant sections of the Bankruptcy Act 1966, specifically focusing on the implications of non-compliance with an instalment order.

The court reasoned that while the failure to comply with the instalment order was a serious matter, it did not automatically lead to the dismissal of the creditor's petition. The court held that it had the discretion to adjourn the hearing of the petition and allow Mr Slaveski additional time to comply with the instalment order. The decision hinged on the principle that the court should consider the broader context of the debtor's compliance and the potential for future compliance. Consequently, the court decided to adjourn the creditor's petition hearing and granted the applicant the liberty to reapply for the listing of the petition should Mr Slaveski fail to comply with the instalment order within the specified timeframe.

Orders

Orders of the court

1. The matter be listed for a directions hearing on 2 February 2011.

2. The Respondent’s application that the creditor’s petition be dismissed be adjourned to the hearing of the creditors petition.

3. The Applicant have liberty to apply for the listing of the creditor’s petition for hearing should the Respondent fail to comply with the instalment order made by Smith M on 27 January 2010.

Note:

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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