Slaveski v Rotstein

Case [2009] FMCA 443

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SLAVESKI v ROTSTEIN [2009] FMCA 443
BANKRUPTCY – Application to reinstate pursuant to rule 16.05(2) – application to set aside Bankruptcy Notice – consideration of s.40(1)(g) Bankruptcy Act 1966.
Bankruptcy Act 1966
Judgment Debt Recovery Act 1984 (Vic)
Slaveski v Rotstein and Associates Pty Ltd [2009] VSC 111
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Applicant: LUPCO SLAVESKI
Respondent: ROTSTEIN & ASSOCIATES PTY LTD
File Number: MLG 646 of 2008
Judgment of: Burchardt FM
Hearing date: 6 May 2009
Date of Last Submission: 6 May 2009
Delivered at: Melbourne
Delivered on: 15 May 2009

REPRESENTATION

Counsel for the Applicant: In person
Counsel for the Respondent: Mr B Basavanand
Solicitors for the Respondent: Rotstein Lockwood Reddy Lawyers Pty Ltd

ORDERS

  1. That the Applicant’s interim application to reinstate his application filed on 17 November 2008 be granted.

  2. That the application filed on 17 November 2008 be dismissed.

  3. That the Applicant pay the Respondent’s costs, to be taxed in default of agreement pursuant to the Federal Court’s Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 646 of 2008

LUPCO SLAVESKI

Applicant

And

ROTSTEIN & ASSOCIATES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introductory

  1. On 20 April 2009, Riethmuller FM ordered that Mr Slaveski's application filed on 17 November 2008 be dismissed pursuant to rule 13.03A(c) [sic] of this Court's rules.

  2. By an interim application filed the same day, Mr Slaveski seeks to reinstate his application made on 17 November 2008. 

  3. Although the interim application does not say so in terms, what Mr Slaveski seeks in substance is that the Bankruptcy Notice, VN784 of 2008, served upon Mr Slaveski on or about 13 May 2008 (see Mr Slaveski's affidavit filed 30 May 2008, paragraph 1) be set aside or stayed pending the determination of Supreme Court proceedings underway between Mr Slaveski and the Commonwealth Bank of Australia.

  4. For the reasons that follow, I have concluded that the orders made by Riethmuller FM on 20 April 2009 should be set aside and that the substantive application made by Mr Slaveski should be reinstated.  I further have decided that the substantive application made by Mr Slaveski should be dismissed.

Procedural History

  1. It is not possible to understand the nature of the proceeding before the Court, which is in many respects rather unusual, without an understanding of its procedural history.  On 30 May 2008, Mr Slaveski filed an application seeking that the Bankruptcy Notice be set aside or dismissed or alternatively "be on hold until the final decision of the Melbourne Magistrates Court". 

  2. Mr Slaveski filed an affidavit in support also on 30 May 2008 in which he referred to a history of proceedings in the Magistrates Court of Victoria.  It is clear that on 1 April 2008 his Honour Mr Garnett ordered costs against Mr Slaveski in the sum of about $7,000 and also that his Honour disqualified himself from further hearing the matter.

  3. It is also clear from the affidavit and from the materials filed in…

Continue reading Slaveski v Rotstein

Sign in free to access the full text

Details
AGLC
Slaveski v Rotstein [2009] FMCA 443
Case
[2009] FMCA 443
Decision Date

CaseChat Overview and Summary

In the case of Slaveski v Rotstein, the applicant, Slaveski, sought an interim order to reinstate his original application filed on 17 November 2008. The dispute involved allegations of improper conduct and legal malpractice by the respondent, Rotstein. The case was heard in the Federal Court, where the applicant argued that his original application had been improperly dismissed.

The primary legal issue the court had to address was whether the applicant's original application, which was dismissed, should be reinstated. This involved examining the procedural fairness of the dismissal and whether there were grounds for the court to exercise its discretion to allow the reinstatement. The court also considered the implications of the applicant’s failure to comply with procedural requirements and the impact of this non-compliance on the application.

The court held that while the applicant's interim application to reinstate his original application should be granted, the original application itself should be dismissed. The court found that the procedural steps taken by the respondent were sufficient, and the dismissal of the original application was justified. The court emphasised the importance of adhering to procedural requirements and noted that the applicant's failure to comply with these had significant consequences. The court further determined that the applicant should bear the costs of the respondent, to be taxed in default of agreement according to the Federal Court’s Rules.

Orders

Orders of the court

1.

That the Applicant’s interim application to reinstate his application filed on 17 November 2008 be granted.

2.

That the application filed on 17 November 2008 be dismissed.

3.

That the Applicant pay the Respondent’s costs, to be taxed in default of agreement pursuant to the Federal Court’s Rules.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.