Stankovic v Van der Velde - [2012] FCA 1436

FEDERAL COURT OF AUSTRALIA
Stankovic v Van Der Velde [2012] FCA 1436

Citation: Stankovic v Van Der Velde [2012] FCA 1436

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

File number: NSD 626 of 2012

Judge: EMMETT J

Date of judgment: 14 December 2012

Corrigendum: 7 January 2013

Legislation: Bankruptcy Act 1966 (Cth) s 116

Cases cited: Re Manivilovski; ex parte Official Trustee in Bankruptcy (1993) 45 FCR 358

Date of hearing: 15 August, 9 November and 7 December 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 19

Counsel for the applicant: J Walsh

Solicitor for the applicant: Darroll Nelson & Co.

Counsel for the respondents: D Ash

Solicitor for the respondents: Watson & Watson

Solicitor for the intervener: T Orlizki of Kent Attorneys

Solicitor for the second cross-respondent: S Richardson of Adrian Twigg & Co Solicitors and Conveyancers
FEDERAL COURT OF AUSTRALIA
Stankovic v Van Der Velde [2012] FCA 1436
CORRIGENDUM
1.In the Orders, Order 7 has been added: “ORDERS that the above Orders be stayed until 8 February 2013”.
2.Solicitor for the applicant has been amended to “Darroll Nelson & Co.”.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Emmett.
Associate:
Dated: 7 January 2013

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 626 of 2012

BETWEEN:
MILOVAN STANKOVIC
Applicant

AND:
TERRY GRANT VAN DER VELDE
First Respondent

JASON SHANE CRONAN
Second Respondent

BETWEEN:
TERRY GRANT VAN DER VELDE
First Cross-Claimant

JASON SHANE CRONAN
Second Cross-Claimant

AND:
MILOVAN STANKOVIC
First Cross-Respondent

MILKA DORDEVIC
Second Cross-Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

14 DECEMBER 2012

WHERE MADE:

SYDNEY

THE COURT:
1.DECLARES, without prejudice to the accrued rights and liabilities of the parties in relation to the pending application by the second cross-respondent for relief under s 79 of the Family Law Act 1975 (Cth), that:
1.1immediately prior to the sequestration of the estate of the first cross-respondent on 12 May 2009, the first cross-respondent owned an equitable joint interest in the property known as Lot B, President Avenue, Kellyville, New South Wales and being the land in Folio Identifier B/379959 (the Property).
1.2since settlement of the sale of the Property, the net proceeds of that sale (the Proceeds) have been owned beneficially by the second cross-respondent, as to fifty (50) per cent, by the first cross-respondent, as to fifteen point zero five (15.05) per cent; and by the cross-claimants under s 58 of the Bankruptcy Act 1966 (Cth), as to thirty four point nine five (34.95) per cent.

2.DECLARES that the cross-claimants have a right to a lien over the whole of the fifty (50) per cent of the Proceeds owned by them and the first cross-respondent, to secure the payment of remuneration, costs and expenses reasonably incurred by them in the preservation and…

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 [2012] FCA 1436
Case: [2012] FCA 1436
Decision Date: 14 December 2012

CaseChat Overview and Summary

The case of Stankovic v Van Der Velde [2012] FCA 1436 involves a dispute over the distribution of proceeds from the sale of a property jointly owned by Michael Stankovic and Milka Dordevic, following Mr Stankovic's bankruptcy. The legal issues before the court were whether any part of the proceeds from the sale of the property could be attributed to compensation for personal injury received by Mr Stankovic, and whether such proceeds should be paid to him under s 116(4) of the Bankruptcy Act 1966 (Cth). The court had to determine if the compensation moneys were used in the acquisition of the property or if they could be fairly attributed to the proceeds from the sale.

Justice Emmett concluded that a portion of the proceeds from the sale of the property could be fairly attributed to the compensation moneys. The court found that the proceeds from the sale of one of the properties used to purchase the subject property could be attributed to the compensation moneys, but only to the extent that it was not presumed to be a gift to Mrs Stankovic. The court applied a pro-rata apportionment method to determine the portion of the proceeds attributable to the compensation moneys, which was found to be 15.05 per cent. The court also held that the trustees in bankruptcy had a right to a lien over their share of the proceeds to secure the payment of their costs and expenses.

The final orders of the court set aside the decision of the trustees made on 6 March 2012, declared the entitlements of the parties to the proceeds of the sale, and ordered the distribution of the proceeds accordingly. The court also discharged an undertaking given by the trustees to the Family Court of Australia and dismissed the proceeding and cross-claim otherwise. The orders were stayed until 8 February 2013.

Orders