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

1. 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”).

2. Earlier judgments in this Court (each styled Stojanovski v Stojanovski) include:

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

2. four judgments of Robb J, respectively, published at:

1. [2019] NSWSC 1713 on 4 December 2019;

2. [2020] NSWSC 558 on 13 May 2020;

3. [2020] NSWSC 1540 on 2 November 2020; and

4. [2021] NSWSC 800 on 1 July 2021.

3. 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”.

4. 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.

5. The fifth and sixth defendants were appointed as trustees in bankruptcy of the first defendant on 30 June 2017.

6. On 18 December 2018 they were appointed as receivers of any rents paid in respect of occupation of the three properties at Mortdale.

7. Since the judgment published by Robb J on 4 December 2019:

1. 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 their representative capacities.

2. the Mort Street Property (with an estimated value of $1.2-$1.4 million) is registered in the names of the fifth and sixth defendants in their representative capacities (as to 50%) and the fourth defendant (as to 50%) as tenants-in-common .

3. the Breakwell Street Property (with an estimated value of $1.55-$1.8 million) is registered in the names of the fifth and sixth defendants in their representative capacities (as to 50%) and the fourth defendant (as to 50%) as tenants-in-common.

8. The Breakwell Street Property is the former matrimonial home of the first and fourth defendants. It is occupied by the fourth defendant.

9. By a “further amended notice of motion” filed on 25 February 2022 the fifth and sixth defendants applied to the Court for orders designed to permit them to sell the Morts Road Property and the Kemp Street Property so as to enable them to satisfy their claims for costs, expenses and remuneration (currently estimated to be of the order of $1.3 million), to pay out the first defendant’s creditors (with an estimated value of about $500,000) and thereby to facilitate an annulment of the first defendant’s bankruptcy.

10. By a notice of motion filed on 7 February 2022 the fourth defendant applied to the Court for an order, under section 5(2) of the Jurisdiction of Courts (Cross Vesting) Act 1987, that the proceedings be transferred to the Family Court. She has pending in that Court a claim for declarations and adjustment orders (pursuant to sections 78 and 79 of the Family Law Act 1975 Cth) vis-à-vis the first defendant.

11. The fourth defendant accepts that:

1. the fifth and sixth defendants are entitled to remuneration, including costs and expenses, the quantum of which remains to be formally determined;

2. their entitlement to remuneration gives rise to a charge against whatever property is the subject of their receivership or trusteeship;

3. she has no claim or legal or equitable entitlement in relation to the Kemp Street Property;

4. she does not oppose an order that the fourth and fifth defendants be authorised to sell the Kemp Street Property in one capacity or another.

12. The fourth defendant maintains, however, that within the Family Law proceedings she would be entitled to have the fourth and fifth defendants’ interest in both the Morts Road Property and the Breakwell Street Property transferred to her as part of any property adjustment order pursuant to section 79 of the Family Law Act 1975. For that reason, she opposes the order sought by the fourth and fifth defendants in respect of the sale of the Morts Road Property, and she seeks an order for their motion to be cross vested for determination in the context of her Family Law proceedings.

13. An acknowledged object of the fourth defendant is to apply to the Family Court for discretionary property adjustment orders (ostensibly between the first defendant and herself) designed to override the interests of the first defendant’s creditors, here represented by the fifth and sixth defendants.

14. This is not the first time that issues of cross vesting have come before the Court in these proceedings. On 20 June 2018 Robb J ordered that the proceedings, including all special Federal matters arising in them, be determined by this Court pursuant to section 6(3) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

15. There is no occasion now for a cross vesting order to be made. There is no relevant connection between the motion of the fifth and sixth defendants and the proceedings in the Family Court. The family law proceedings are concerned with the division of property of the marriage between the first and fourth defendants. What property there is to be divided is a prior and separate question.

16. Nothing about the entitlements of the fifth and sixth defendants to remuneration is related to the division of property of the marriage. Nor are Family Law proceedings a means by which the creditors of the first defendant can properly be overridden in the circumstances of this case.

17. The interests of justice favour this Court determining the motion of the fifth and sixth defendants. The orders sought by the fifth and sixth defendants are consequential upon the receivership order and other orders made by this Court. The fifth and sixth defendants have been unfunded for over five years; a transfer of proceedings to the Family Court would involve continuing delays in administration of the receivership and the first defendant’s bankruptcy. A sale of property as proposed by the fifth and sixth defendants is likely to allow the receivership to be concluded and an opportunity for the first defendant’s bankruptcy to be annulled, leaving him to contest the fourth defendant’s Family Law proceedings without the impediments of receivership or bankruptcy.

18. Accordingly, subject to allowing the parties an opportunity to make submissions about the form of the orders, I propose:

1. to order that the fourth defendant’s notice of motion filed 7 February 2022 be dismissed with costs;

2. to make orders substantially in the form claimed in the fifth and sixth defendants’ further amended notice of motion filed on 25 February 2022 (authorising their sale of the Kemp Street Property and the Morts Road Property as receivers and managers appointed for that purpose).

19. I direct that the fifth and sixth defendants bring in short minutes of order to give effect to this judgment.

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Decision last updated: 28 April 2022