FEDERAL COURT OF AUSTRALIA
Stojanovski v Stojanovski [2018] FCA 580
File number: NSD 2146 of 2017 Judge: FLICK J Date of judgment: 27 April 2018 Catchwords: BANKRUPTCY AND INSOLVENCY – application for leave to prosecute proceedings in Supreme Court of New South Wales – where proceedings already commenced when sequestration order made against First Respondent – whether leave should be granted Legislation: Bankruptcy Act 1966 (Cth) ss 58, 116
Conveyancing Act1919 (NSW) s 37A
Family Provision Act1982 (NSW)
Cases cited: 7Steel Building Solutions Pty Ltd v Wright [2011] FCA 328
Allanson v Midland Credit Ltd (1977) 30 FLR 108
Macquarie Bank Ltd v Bardetta [2005] FCA 507, (2005) 216 ALR 670
Morris Finance Ltd v Brown [2017] FCAFC 97, (2017) 350 ALR 86
Re Rose; Ex parte Devaban Pty Ltd (unreported, Hill J, 7 October 1994)
Sturdy Components Pty Ltd v Trustee of the Bankrupt Estate of Sturt [2000] FCA 884
Date of hearing: 24 April 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 19 Counsel for the Applicant: Mr C J Bevan Solicitor for the Applicant: One Legal Group Solicitor for the First, Second and Third Respondents: The First, Second and Third Respondents did not appear Solicitor for the Fourth Respondent: Mr J Carswell-Doherty of Foulsham & Geddes Solicitor for the Fifth and Sixth Respondents: Ms Nicola Bailey of Polczynski Robinson Lawyers ORDERS
NSD 2146 of 2017 BETWEEN: STEVEN STOJANOVSKI
Applicant
AND: ROBERT STOJANOVSKI
First Respondent
JOVANKA STOJANOVSKI
Second Respondent
JORDAN STOJANOVSKI (and others named in the Schedule)
Third Respondent
JUDGE:
FLICK J
DATE OF ORDER:
27 APRIL 2018
THE COURT ORDERS THAT:
1.The Applicant has leave to continue to prosecute to its conclusion proceeding No. 2012/0089349 in the Supreme Court of New South Wales (the “Supreme Court proceeding”) on the conditions specified in order 2 below pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”).
2.The following conditions referred to in order 1 above shall apply to the grant of leave under s 58(3) of the Bankruptcy Act which is made in order 1 above:
(a)Prayer 9 in the Applicant’s Proposed Fifth Further Amended Statement of Claim in the Supreme Court proceeding (the “5FASOC”) be amended so that the words appearing before the word “comprising” are replaced with the words:
“Alternatively, an order that the Plaintiff be entitled to equitable compensation which is to constitute a provable debt in the First Defendant’s bankrupt estate comprising of … [(a)] – [(c)]”;
(b)Prayer 10 in the 5FASOC be amended to read:
“Order that the First Defendant, Robert Stojanovski, and the Fourth Defendant, Angelina Stojanovski, jointly and severally pay the Plaintiff’s costs and the costs of the Second Defendant, Jovanka Stojanovski, of and incidental to the proceedings, including all reserved costs, on the indemnity basis and, in the case of…
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- Case
- [2018] FCA 580
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the conditions under which the Applicant could proceed with the litigation. It was established that there are two categories of property that would be vested in the trustees in bankruptcy: non-divisible property, which is held as bare trustees for Steven Stojanovski, and divisible property, which is subject to distribution among creditors. The court concluded that while leave should be granted, a condition must be imposed to prevent Steven Stojanovski from assuming any preferential rights over other creditors in respect of the divisible property. This decision was based on ensuring equitable treatment of all creditors.
The reasoning behind the court's decision was to maintain the integrity of the bankruptcy proceedings by ensuring that all creditors have equal access to divisible assets. The court found that the proposed conditions, including specific amendments to the statements of claim and restrictions on enforcing judgments against divisible property, were reasonable and necessary to uphold the principles of fairness and equity. The final orders of the court granted leave to continue the proceedings under specified conditions and dismissed the proceeding with no order as to costs. The court also noted an agreement between the parties that the costs of the proceeding in the Federal Court would be borne by the parties in the Supreme Court.
Orders
Orders of the court
1. The Applicant has leave to continue to prosecute to its conclusion proceeding No. 2012/0089349 in the Supreme Court of New South Wales (the “Supreme Court proceeding”) on the conditions specified in order 2 below pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) (the “Bankruptcy Act”).
2. The following conditions referred to in order 1 above shall apply to the grant of leave under s 58(3) of the Bankruptcy Act which is made in order 1 above:
(a) Prayer 9 in the Applicant’s Proposed Fifth Further Amended Statement of Claim in the Supreme Court proceeding (the “5FASOC”) be amended so that the words appearing before the word “comprising” are replaced with the words:
“Alternatively, an order that the Plaintiff be entitled to equitable compensation which is to constitute a provable debt in the First Defendant’s bankrupt estate comprising of … [(a)] – [(c)]”;
(b) Prayer 10 in the 5FASOC be amended to read:
“Order that the First Defendant, Robert Stojanovski, and the Fourth Defendant, Angelina Stojanovski, jointly and severally pay the Plaintiff’s costs and the costs of the Second Defendant, Jovanka Stojanovski, of and incidental to the proceedings, including all reserved costs, on the indemnity basis and, in the case of the First Defendant, that the Plaintiff be entitled to claim any such costs as a provable debt in the First Defendant’s bankrupt estate”; and
(c) The Applicant not enforce any judgment or orders obtained by him against the property of the First Respondent, Robert Stojanovski, being property which is divisible amongst the creditors of his bankrupt estate within the meaning of s 116(1) of the Bankruptcy Act, other than by way of lodgement of a proof of debt with the Fifth and Sixth Respondents, in their capacity as joint and several trustees in bankruptcy of the First Respondent, Robert Stojanovski, pursuant to Part VI of the Bankruptcy Act, without the leave of this Court pursuant to s 58(3) of the Bankruptcy Act or otherwise.
3. The proceeding is otherwise dismissed and there be no order as to costs.
AND THE COURT NOTES:
The agreement between the parties that the costs of the present proceeding in this Court will be their costs in the Supreme Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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