Stankovic v Namul Pty Limited

[2013] NSWCA 276

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Stankovic v Namul Pty Limited [2013] NSWCA 276

Hearing dates:

27 August 2013

Decision date:

27 August 2013

Before:

Meagher JA, Barrett JA, Tobias AJA

Decision:

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - no question of general principle arising - no ground of appeal shown - respondent's title to land unimpeachable - short form reasons appropriate

Legislation Cited:

Real Property Act 1900, s 42
Supreme Court Act 1970, s 45(4)
Uniform Civil Procedure Rules 1970, rule 51.55

Cases Cited:

Stankovic v The Hills Shire Council (No 3) [2012] FCA 523

Category:

Principal judgment

Parties:

Milovan Stankovic (Appellant)
Namul Pty Limited (Respondent)

Representation:

Counsel:
Self-represented Appellant
M W Sneddon/C A Alexander (Respondent)
Solicitors:
Self-represented Appellant
McLaughlin & Riordan (Respondent)

File Number(s):

CA2013/50343; CA2013/99410

 Decision under appeal 

Citation:

Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115

Date of Decision:

2013-02-14 00:00:00

Before:

Rein J

File Number(s):

SC 2013/34311

Judgment

1. THE COURT: The Court is of the clear and unanimous opinion that the appeal must be dismissed with costs.

1. It is also of the clear and unanimous opinion that the case is one in which no question of general principle arises and the power under s 45(4) of the Supreme Court Act 1970 and rule 51.55 of the Uniform Civil Procedure Rules 2005 to give reasons in short form should be exercised.

1. The appellant was formerly one of two registered proprietors of land at Kellyville, the other being his then wife. They held as tenants in common. In May 2009, the appellant became a bankrupt upon the making of a sequestration order by the Federal Magistrates Court. Mr Van der Velde and Mr Cronan were appointed trustees of his bankrupt estate. In June 2010, the Family Court of Australia made orders appointing Mr Van der Velde, Mr Cronan and the appellant's wife as trustees for sale of the Kellyville property. Those three persons had previously become registered as proprietors of the land under the provisions of the Real Property Act 1900.

1. The land was in due course submitted for sale by auction. A contract for sale was entered into on 14 September 2010 between the three registered proprietors as vendors and Eric Newham Holdings Pty Ltd as purchaser for a price of $6,700,000. The contract was in due course completed by transfer and Eric Newham Holdings Pty Ltd became registered as proprietor under the Real Property Act.

1. The present registered proprietor under that Act is the respondent, Namul Pty Ltd, an associated company of Eric Newham Holdings Pty Ltd. It became the transferee from Eric Newham Holdings Pty Ltd in the course of a group reorganisation.

1. By various acts to which it is not necessary to refer, the appellant refused to concede the respondent's right to possession of the land. The respondent, as plaintiff, therefore initiated proceedings in the Equity Division seeking permanent injunctive relief and declaratory relief as against the appellant. The appellant, for his part, cross-claimed for injunctive relief against the respondent.

1. On 14 February 2013, Rein J granted the relief sought by the respondent and dismissed the cross-claim.

1. The appellant maintained before Rein J that the respondent had taken title to the land with notice of fraud in or about the appointment of trustees of the appellant's bankrupt estate. The fraud that the appellant now seems to allege is described at [16] of a judgment of the Federal Court of Australia (Emmett J) in Stankovic v The Hills Shire Council (No 3) [2012] FCA 523. According to the appellant, it had its origin in proceedings in the Land and Environment Court in which the costs order that founded the bankruptcy was made. The explanation given in the Federal Court judgment does not support any view whatsoever that there was any fraud.

1. The primary judge was in any event of the opinion that the appellant's assertions did not amount to evidence of misconduct, irregularity or fraud; added to which, Mr Newham (the principal of both the respondent and Eric Newham Holdings Pty Ltd) and the respondent were entitled to act on the faith of the court orders appointing the trustees in bankruptcy and the trustees for sale. In short, there was a finding that the respondent was not involved in any fraud and had no notice of any fraud.

1. The primary judge went on to consider steps taken by the appellant to have his bankruptcy annulled and to have the sequestration order set aside, all of which were unsuccessful.

1. The primary judge was required (as this Court is) to recognise and accept the orders of the Federal Magistrate's Court, the Family Court and the Land and Environment Court. The power of the trustees in bankruptcy and the wife to sell was clear and unimpeachable. They duly exercised that power so as to bring about a sale at arm's length to a purchaser for value who became the registered proprietor in consequence of the purchase. The respondent became the registered proprietor by registration of a subsequent transfer.

1. The appellant has shown no basis for impugning the indefeasible title obtained by the respondent under s 42 of the Real Property Act in consequence of its becoming the registered proprietor of the land. That title is held free from all estates and interests other than those recorded in the register. No estate or interest of the appellant is so recorded.

1. The primary judge was correct in holding that the respondent held the land free from any interest of the appellant and in making the orders that he made.

1. The order of the Court is that the appeal be dismissed with costs.

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Decision last updated: 28 August 2013