Stankovic v Van Der Velde - [2013] FCAFC 57

FEDERAL COURT OF AUSTRALIA
Stankovic v Van Der Velde [2013] FCAFC 57

Citation: Stankovic v Van Der Velde [2013] FCAFC 57

Appeal from: Stankovic v Van Der Velde [2012] FCA 1436

Parties: MILOVAN STANKOVIC v TERRY GRANT VAN DER VELDE , JASON SHANE CRONAN and MILKA DORDEVIC

File number: NSD 145 of 2013

Judges: EDMONDS, JAGOT AND BROMBERG JJ

Date of judgment: 3 June 2013

Catchwords: BANKRUPTCY AND INSOLVENCY - appeal in relation to orders made in proceedings under s 178(1) of the Bankruptcy Act 1966 (Cth) - whether validity of sequestration order and appointment of trustees could be raised on the appeal.

Legislation: Bankruptcy Act 1966 (Cth) ss 116(2)(g), 116(2)(n), 116(2)(D), 116(4), 153B(1), 178(1)

Cases cited: Stankovic v Van Der Velde [2012] FCA 1436
Kent and Orlizki, in the matter of the Bankrupt Estate of Milovan Stankovic [2012] FCA 333

Date of hearing: 22 May 2013

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 21

Counsel for the Appellant: The Appellant appeared in person

Counsel for the First and Second Respondents: D Ash

Solicitor for the First and Second Respondents: Watson & Watson

Solicitor for the Third Respondent: S Richardson of Adrian Twigg & Co Solicitors and Conveyancers

Solicitor for the intervener: T Orlizki of Kent Attorneys

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 145 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MILOVAN STANKOVIC
Appellant

AND:
TERRY GRANT VAN DER VELDE
First Respondent

JASON SHANE CRONAN
Second Respondent

MILKA DORDEVIC
Third Respondent

JUDGES:

EDMONDS, JAGOT AND BROMBERG JJ

DATE OF ORDER:

3 JUNE 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Leave for the appellant to rely upon his affidavits made on 9 and 14 May 2013 is refused.
2.The appeal is dismissed.
3.The appellant pay the costs of each of the respondents.
4.The interlocutory application of Rodney Kent and Tim Orlizki dated 31 January 2013 is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 145 of 2013

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MILOVAN STANKOVIC
Appellant

AND:
TERRY GRANT VAN DER VELDE
First Respondent

JASON SHANE CRONAN
Second Respondent

MILKA DORDEVIC
Third Respondent

JUDGES:

EDMONDS, JAGOT AND BROMBERG JJ

DATE:

3 JUNE 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 12 May 2009, a sequestration order was made in respect of the estate of Mr Stankovic (“the sequestration order”). The first and second respondents (“the Trustees”) were appointed trustees in bankruptcy of Mr Stankovic’s estate. At the time of the making of the sequestration order, Mr Stankovic and the third respondent were the joint owners of a property situated at President Avenue, Kellyville, New South Wales (“the Kellyville property”). The third respondent and the Trustees were appointed as trustees for sale of the Kellyville property, which was subsequently sold. Net of commission and costs, the proceeds of sale are held by…

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 Stankovic v Van Der Velde

Details

AGLC: Stankovic v Van Der Velde [2013] FCAFC 57
Case: [2013] FCAFC 57
Decision Date: 3 June 2013

CaseChat Overview and Summary

In the matter of Stankovic v Van Der Velde, the Federal Court was tasked with addressing an appeal against orders made in proceedings under section 178(1) of the Bankruptcy Act 1966 (Cth). The appellant, Stankovic, sought to challenge the validity of a sequestration order and the appointment of trustees, arguing that these matters could be raised on appeal. The respondents, Van Der Velde and others, opposed the appeal and argued that the matters were not properly before the court. The court had to determine whether the appellant could challenge the validity of the sequestration order and the appointment of trustees on appeal, and whether the appellant's affidavits could be relied upon.

The central legal issues in this case were whether the appellant had the right to challenge the validity of the sequestration order and the appointment of trustees on appeal, and whether the appellant's affidavits could be used as evidence. The court considered whether the matters raised by the appellant were properly before it and whether the appeal was an appropriate means to challenge the orders made in the original proceedings. The court also considered whether the appellant's affidavits could be relied upon and whether they contained sufficient evidence to support the appellant's claims.

In its decision, the court held that the validity of the sequestration order and the appointment of trustees could not be raised on appeal. The court found that the appellant had not demonstrated that the orders made in the original proceedings were unlawful or that there were any errors of law that warranted an appeal. The court also held that the appellant's affidavits did not contain sufficient evidence to support his claims and could not be relied upon. The court dismissed the appeal and ordered that the appellant pay the costs of each of the respondents. The interlocutory application of Rodney Kent and Tim Orlizki was also dismissed.

In conclusion, the court held that the appellant could not challenge the validity of the sequestration order and the appointment of trustees on appeal and that the appellant's affidavits could not be relied upon. The appeal was dismissed, and the appellant was ordered to pay the costs of each of the respondents. The interlocutory application of Rodney Kent and Tim Orlizki was also dismissed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. Leave for the appellant to rely upon his affidavits made on 9 and 14 May 2013 is refused.

2. The appeal is dismissed.

3. The appellant pay the costs of each of the respondents.

4. The interlocutory application of Rodney Kent and Tim Orlizki dated 31 January 2013 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.

Citation:		Stankovic v Van Der Velde [2013] FCAFC 57
Appeal from:		Stankovic v Van Der Velde [2012] FCA 1436
Parties:		MILOVAN STANKOVIC v TERRY GRANT VAN DER VELDE , JASON SHANE CRONAN and MILKA DORDEVIC
File number:		NSD 145 of 2013
Judges:		EDMONDS, JAGOT AND BROMBERG JJ
Date of judgment:		3 June 2013
Catchwords:		BANKRUPTCY AND INSOLVENCY - appeal in relation to orders made in proceedings under s 178(1) of the Bankruptcy Act 1966 (Cth) - whether validity of sequestration order and appointment of trustees could be raised on the appeal.
Legislation:		Bankruptcy Act 1966 (Cth) ss 116(2)(g), 116(2)(n), 116(2)(D), 116(4), 153B(1), 178(1)
Cases cited:		Stankovic v Van Der Velde [2012] FCA 1436 Kent and Orlizki, in the matter of the Bankrupt Estate of Milovan Stankovic [2012] FCA 333
Date of hearing:	22 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	21
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First and Second Respondents:	D Ash
Solicitor for the First and Second Respondents:	Watson & Watson
Solicitor for the Third Respondent:	S Richardson of Adrian Twigg & Co Solicitors and Conveyancers
Solicitor for the intervener:	T Orlizki of Kent Attorneys

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 145 of 2013

JUDGES:	EDMONDS, JAGOT AND BROMBERG JJ
DATE OF ORDER:	3 JUNE 2013
WHERE MADE:	SYDNEY

JUDGES:	EDMONDS, JAGOT AND BROMBERG JJ
DATE:	3 JUNE 2013
PLACE:	SYDNEY