Stankovic v The Hills Shire Council

[2012] NSWSC 738

Supreme Court

New South Wales

Medium Neutral Citation:

Stankovic v The Hills Shire Council [2012] NSWSC 738

Hearing dates:

2 July 2012

Decision date:

02 July 2012

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Dismiss the amended statement of claim.

(2) Order the plaintiff to pay the costs of:

(a) the second and third defendants on an indemnity basis; and

(b) the first, fourth and fifth defendants on a party/ party basis.

Catchwords:

PRACTICE AND PROCEDURE - application for summary dismissal - whether a reasonable cause of action

Legislation Cited:

- Bankruptcy Act 1966 (Cth)

Cases Cited:

- Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198

Category:

Interlocutory applications

Parties:

- Michael Stankovic (Plaintiff)
- The Hills Shire Council (1st Defendant)
- Terry Grant Van Der Velde (2nd Defendant)
- Jason Shane Cronan (3nd Defendant)
- State of New South Wales (4th Defendant)
- Commonwealth of Australia (5th Defendant)

Representation:

Counsel:
Dr J Walsh (Plaintiff)
M Pearce (1st Defendant)
D Ash (2nd and 3rd Defendants)
G Bateman (4th Defendant)
A Markus (5th Defendant)
Solicitors:
M Pearce (1st Defendant)
Watson & Watson (2nd and 3rd Defendants)
I V Knight, Crown Solicitor (4th Defendant)
Australian Government Solicitor (5th Defendant)

File Number(s):

2012/145146

Judgment

Introduction

1. The plaintiff filed a statement of claim on 7 May 2012. The defendants moved to dismiss the pleading on the basis that it disclosed no reasonable cause of action and was vexatious. The plaintiff was given leave to re-plead and the defendants' notice of motion was adjourned until 2 July 2012. The plaintiff filed an amended statement of claim. The defendants sought the same relief in respect of the new pleading.

Facts

1. The Hills Shire Council (the Council) filed a creditor's petition claiming rates said to be unpaid. A sequestration order was made by Raphael FM on 12 May 2009 on the basis of that petition. The second and third defendants (the Trustees) were appointed as trustees of the plaintiff's estate. All proceedings under the sequestration order were stayed for 21 days and liberty to apply was granted. On 29 May 2009, the plaintiff availed himself of the liberty to apply and sought that his bankruptcy be set aside or that the stay be extended on the basis that he had paid the petitioning creditor. The plaintiff's application was stood over to 2 June 2009. On 2 June 2009, the plaintiff made an oral application before the Federal Magistrates Court, which dismissed the application by consent.

1. The plaintiff filed a statement of affairs on 13 July 2009, in which he listed as an asset his interest in property at Kellyville (the Property) which, prior to the sequestration order being made, he owned with his wife. His interest in the property passed by operation of law to his Trustees upon the making of the sequestration order: s 58 of the Bankruptcy Act 1966 (Cth) (the Act). As a result of separate proceedings brought by the plaintiff's then wife in the Family Court, the Property was sold.

1. On 19 May 2011, the plaintiff applied to the Federal Court for leave to file and serve a notice of appeal out of time. The plaintiff's application was heard and dismissed by Emmett J on 4 May 2012.

The Amended Statement of Claim

1. In the new pleading the plaintiff alleges:

(1)   That the Council brought proceedings against him in relation to activities carried out on the Property (at [1]);

(2)   Council officers have trespassed on the Property since before 2004 (at [2]);

(3)   The Council has brought proceedings against him previously (at [3]);

(4)   The plaintiff paid the debt claimed by the petitioning creditor on 25 May 2009 and that this ought to have brought about the cancellation or the annulment of the sequestration order (at [4]);

(5)   The defendants did not exercise a "proper duty of care" and deliberately and intentionally concealed and or disregarded the payment, as a result of which the plaintiff has suffered extreme emotional distress with the breakdown of his marriage and severe consequences to his health (at [5]);

(6)   The plaintiff has suffered "huge financial losses" as a result of the failure to have the sequestration matter resolved and his health has been damaged (at [6]).

1. Mr Ash, who appeared on behalf of the Trustees, and whose submissions were adopted by the other defendants, submitted in respect of the pleading as follows. As to [1], it was a factual assertion of no relevance. As to [2], if indeed this was the case, any right to damages for trespass prior to the sequestration order was a chose in action that vested in the Trustees by reason of s 58 of the Act. Furthermore, the Property has been sold. As to [3], this is not a cause of action. As to [4] - [5], these matters are not only within the exclusive jurisdiction of the Federal Court, Federal Magistrates Court and Family Court but they have also been dealt with finally by the Federal Court on 4 May 2012 and it is an abuse of process to re-agitate them in this Court.

1. Dr Walsh, who appeared for the plaintiff, sought to explain how the course of events had occurred. He submitted that the plaintiff had not been represented on 2 June 2009 and that there might have been an error in that he might have thought that he was consenting to the sequestration order being set aside, whereas he was in fact consenting to his application to have it set aside being dismissed. Dr Walsh submitted that the plaintiff had suffered substantial loss because the Property had increased in value substantially since its sale.

1. I accept Mr Ash's submissions, to which the plaintiff, by his counsel Dr Walsh, had no answer. Section 27 of the Act makes it clear that this Court has no jurisdiction in bankruptcy. This is sufficient to dispose of the matter. However, even if this were not the case, the present proceedings amount to an abuse of process since, effectively, the plaintiff is seeking to re-agitate matters on which he was unsuccessful in another proceedings: Rippon v Chilcotin [2001] NSWCA 142; 53 NSWLR 198.

1. Each of the defendants sought orders for costs. The Trustees sought an order for costs on an indemnity basis. I consider that the Trustees are entitled to costs on an indemnity basis. The plaintiff's pleadings did not disclose a cause of action; this Court has no jurisdiction with respect to bankruptcy. The proceedings were doomed to fail.

Orders

1. I make the following orders:

(1)   Dismiss the amended statement of claim.

(2)   Order the plaintiff to pay the costs of:

(a)   the second and third defendants on an indemnity basis; and

(b)   the first, fourth and fifth defendants on a party/ party basis.

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Decision last updated: 04 July 2012