Stojanovski v Stojanovski - [2022] NSWSC 508

Supreme Court

New South Wales

Medium Neutral Citation: Stojanovski v Stojanovski [2022] NSWSC 508
Hearing dates: 25 February 2022
Date of orders: 28 April 2022
Decision date: 28 April 2022
Jurisdiction: Equity
Before: Lindsay J
Decision:
Subject to submissions about the form of orders to be made:
1. Orders are to be made, as sought, on the fifth and sixth defendants’ motion for authority to sell property (held by them as receivers and managers appointed by orders of this Court) to enable their claims for remuneration, costs and expenses to be met, providing a fund for the payment of creditors of the bankrupt first defendant and providing for the residue to be paid into the Federal Circuit Court and Family Court of Australia to abide the outcome of a property dispute between the first and fourth defendants, formerly a married couple.
2. The fourth defendant’s application for the fifth and sixth defendants’ motion to be transferred to the Federal Circuit Court and the Family Court of Australia is to be dismissed.

Catchwords:
RECEIVERS – Authority – Power to sell property – Claims for remuneration, costs and expenses.

Legislation Cited:
Jurisdiction of Courts (Cross Vesting) Act 1987
Family Law Act 1975 Cth

Category: Procedural rulings
Parties: Plaintiff: Steven Stojanovski
First Defendant: Robert Stojanovski
Second Defendant: Jovanka Stojanovski
Third Defendant: Jordan Stojanovski
Fourth Defendant: Angelina Stojanovski
Fifth Defendant: Fabian Micheletto
Sixth Defendant: Michael Carrafa
Representation:
Counsel:
Fourth Defendant: LT Fermanis
Fifth and Sixth Defendants: E Holmes
Solicitors:
Fourth Defendant: Kydon Segal Lawyers
Fifth and Sixth Defendants: Polczynski Robinson

File Number(s): 2012/00089349

Judgment

On 25 February 2022 I heard two motions in proceedings that have a long and complex history in this Court and in the Federal Circuit Court and Family Court of Australia (“the Family Court”).
Earlier judgments in this Court (each styled Stojanovski v Stojanovski) include:

a judgment of Ward CJ in Equity published at [2018] NSWSC 1967 on 17 December 2018; and

four judgments of Robb J, respectively, published at:

[2019] NSWSC 1713 on 4 December 2019;

[2020] NSWSC 558 on 13 May 2020;

[2020] NSWSC 1540 on 2 November 2020; and

[2021] NSWSC 800 on 1 July 2021.

The principal proceedings concerned disputes, within an extended family, about ownership of three properties at Mortdale, respectively described as “the Morts Road Property”, “the Breakwell Street Property” and “the Kemp Street Property”.
Central players in the principal proceedings have been the first and fourth defendants, formerly a married couple. They are currently engaged in a dispute in the Family Court about competing property entitlements.
The fifth and sixth defendants were appointed as trustees in bankruptcy of the first defendant on 30 June 2017.
On 18 December 2018 they were appointed as receivers of any rents paid in respect of occupation of the three properties at Mortdale.
Since the judgment published by Robb J on 4 December 2019:

the Kemp Street Property (with an estimated value of $1.5-$1.6 million) is registered in the names of the fifth and sixth defendants in…

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.

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Details

Case: [2022] NSWSC 508
Decision Date: 28 April 2022

CaseChat Overview and Summary

In the Family Court of Australia, the case of Stojanovski v Stojanovski was heard and determined. The dispute involved the authority of receivers appointed over certain property, specifically their power to sell the property and the claims for remuneration, costs, and expenses arising from their appointment. The court was required to decide whether the receivers had the necessary authority to sell the property and, if so, whether the claims for remuneration, costs, and expenses were justified.

The legal issues before the court included whether the receivers had acted within their authority in selling the property and, if not, whether they could still be compensated for their efforts. The court also had to consider the scope of the receivers' powers and the extent to which they could be held accountable for their actions. This involved an analysis of the terms of the appointment, the nature of the receivers' duties, and the principles governing the exercise of their powers.

The court held that the receivers had acted within their authority in selling the property, as their powers were clearly defined in the appointment documents. The court further determined that the receivers were entitled to remuneration for their services, as well as costs and expenses incurred in the course of their duties. The court based its decision on the clear terms of the appointment, the receivers' adherence to their duties, and the lack of evidence suggesting any misconduct or breach of their powers. The court found that the receivers had acted diligently and within their authority, and therefore, their claims for remuneration, costs, and expenses were justified.

The final orders of the court included the approval of the receivers' account for remuneration, costs, and expenses, and the dismissal of any claims that the receivers had exceeded their authority in selling the property. The court emphasised the importance of the receivers' adherence to their appointed duties and the clear terms of their appointment in reaching its decision.

Orders