Stojanovski v Stojanovski (No 2) - [2024] NSWSC 369

Supreme Court

New South Wales

Case Name:	Stojanovski v Stojanovski (No 2)
Medium Neutral Citation:	[2024] NSWSC 369
Hearing Date(s):	On the papers, last submission received 28 March 2024
Decision Date:	10 April 2024
Jurisdiction:	Equity
Before:	McGrath J
Decision:	Trustees and receivers entitled to further remuneration and expenses
Catchwords:	CORPORATIONS — trustees and receivers — whether trustees and receivers are entitled to recover further receivership costs — HELD — further receivership costs to be paid to trustees and receivers
Cases Cited:	In the matter of Banksia Securities Ltd (in liq) (Receivers and managers appointed) [2017] NSWSC 540 In the matter of Cannuli Holdings Pty Ltd (in liq) (Court-appointed receiver acting) [2017] NSWSC 1562 In the matter of Gondon Five Pty Ltd and Cui Family Asset Management Pty Ltd [2019] NSWSC 469 In the matter of Idylic Solutions Pty Ltd as trustee for Super Save Superannuation Fund and others [2016] NSWSC 1292 In the matter of Say Enterprises Pty Ltd [2018] NSWSC 396 Re Octavia Administration Pty Ltd (in liq) [2020] NSWSC 927 Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liquidation) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38 Templeton v Australian Securities and Investments Commission [2015] FCAFC 137
Category:	Principal judgment
Parties:	Angelina Stojanovski (Fourth Defendant) Fabian Kane Micheletto (Fifth Defendant) Michael Carrafa (Sixth Defendant)
Representation:	Determined on the papers
File Number(s):	2012/00089349

JUDGMENT

INTRODUCTION

This judgment follows my earlier judgment in Stojanovski v Stojanovski [2023] NSWSC 1645 (Principal Judgment) in which I determined the amount of the Priority Costs, the Receivership Costs and the Sale Costs (as defined in the Principal Judgment) which the fifth and sixth defendants (Trustees/Receivers) were entitled to be paid by way of their remuneration, costs and expenses in their capacity as receivers and trustees in the bankruptcy of Robert Stojanovski (to whom I will refer by his first name without meaning any disrespect).
The remaining issue from the Principal Judgment is the extent to which the Trustees/Receivers are entitled to recover further costs for the work done by them in the period after 20 January 2023.
This judgment assumes familiarity with the Principal Judgment. Shorthand expressions and definitions used in the Principal Judgment are also used in this judgment.
The only active parties in the disputes which were the subject of the Principal Judgment were the Trustees/Receivers and the fourth defendant, Angelina Stojanovski, to whom I will continue to refer by her first name without intending any disrespect. The Trustees/Receivers and Angelina are also the only active parties in the dispute over the remaining issue.
The remaining issue arises by virtue of the orders made by Lindsay J on 18 May 2022 (May 2022 Orders). Those orders established the Receivers Fund, comprising the proceeds of sale of the Kemp Street Property and the Morts Road Property (the Properties) (order 3). Of particular importance are orders 6 and 8 of the May 2022 Orders which are as follows:
6. In order to exercise…

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.

Keep reading for free

Create a free CaseChat account to read Stojanovski v Stojanovski (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWSC 369
Decision Date: 10 April 2024

CaseChat Overview and Summary

The case of Stojanovski v Stojanovski (No 2) involved the trustees and receivers of the estate of Robert Stojanovski who sought to recover additional costs incurred post the 20 January 2023. These costs, termed "Further Receivership Costs," were claimed from the estate of the bankrupt, specifically from the Receivers Fund established by prior court orders. The primary respondents were Angelina Stojanovski and the estate of Robert Stojanovski. The dispute centered on whether the trustees and receivers were entitled to additional compensation beyond the initial set of costs already adjudicated. The court was tasked with determining the extent to which the trustees and receivers could claim these further costs, which were largely attributed to legal work performed by their solicitors, Polczynski Robinson.

The central legal issues involved the interpretation of the court orders that established the Receivers Fund and the scope of costs that could be claimed from this fund. The trustees and receivers argued that the further costs were reasonably incurred and necessary for the management of the estate, while Angelina contested the necessity and reasonableness of these costs. The court had to decide whether these additional costs were justified and whether they fell within the parameters set by the previous court orders.

The court found that the trustees and receivers were indeed entitled to recover the further receivership costs as they were reasonably and necessarily incurred in the administration of the estate. The tasks performed by Polczynski Robinson, as detailed in the Rosati Report, were deemed appropriate and proportionate to the complexity of the proceedings. The court accepted that the legal fees and disbursements claimed were fair and reasonable, and that the narrations of work performed were consistent with the nature of the case. The court's decision was influenced by the Rosati Report which provided an expert opinion on the reasonableness of the costs incurred by Polczynski Robinson.

In conclusion, the court ruled in favor of the trustees and receivers, granting them the right to recover the further receivership costs from the Receivers Fund. This decision was based on the premise that the costs were necessary, reasonable, and in line with the previous court orders establishing the fund. The court's judgment ensures that the trustees and receivers could continue to perform their duties without undue financial burden, thereby upholding the integrity of the estate administration process.

Orders

Orders of the court

Full text does not contain this section.

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

This judgment follows my earlier judgment in Stojanovski v Stojanovski [2023] NSWSC 1645 (Principal Judgment) in which I determined the amount of the Priority Costs, the Receivership Costs and the Sale Costs (as defined in the Principal Judgment) which the fifth and sixth defendants (Trustees/Receivers) were entitled to be paid by way of their remuneration, costs and expenses in their capacity as receivers and trustees in the bankruptcy of Robert Stojanovski (to whom I will refer by his first name without meaning any disrespect). The remaining issue from the Principal Judgment is the extent to which the Trustees/Receivers are entitled to recover further costs for the work done by them in the period after 20 January 2023. This judgment assumes familiarity with the Principal Judgment. Shorthand expressions and definitions used in the Principal Judgment are also used in this judgment. The only active parties in the disputes which were the subject of the Principal Judgment were the Trustees/Receivers and the fourth defendant, Angelina Stojanovski, to whom I will continue to refer by her first name without intending any disrespect. The Trustees/Receivers and Angelina are also the only active parties in the dispute over the remaining issue. The remaining issue arises by virtue of the orders made by Lindsay J on 18 May 2022 (May 2022 Orders). Those orders established the Receivers Fund, comprising the proceeds of sale of the Kemp Street Property and the Morts Road Property (the Properties) (order 3). Of particular importance are orders 6 and 8 of the May 2022 Orders which are as follows:6. In order to exercise the power or powers granted by order 2, ORDER that the fifth and sixth defendants:e. are entitled to take all reasonably necessary steps required (including, but not limited to, appointing a real estate agent and auctioneer) to sell the Properties by public auction.f. are to obtain a valuation of the Properties by a registered valuer appointed by the fifth and sixth defendants and upon receipt of the valuation is to apply to the Court for the setting of a reserve price for the sale of the Properties by public auction (the Reserve Price).g. must not sell the Properties for less than the Reserve Price except by leave of the Court.h. if, at a public auction of the Properties the Reserve Price is not reached, then the Properties are to be passed in and the fifth and sixth defendants are to take all reasonably necessary steps required to sell the Properties by further public auction or by private treaty at or above the Reserve Price.i. The fifth and sixth defendants have the Power to:i. appoint agents, valuers, solicitors and/or conveyancers as required to sell the Properties;ii. make all necessary adjustments of rates and taxes on settlement of sale of the Properties;iii. do all things necessary and incidental to effect the sale of the Properties;iv. deduct, from the proceeds of sale of the Properties, the commission and other expenses of any real estate agent employed by the fifth and sixth defendants;v. deduct, from the proceeds of sale of the Properties, the remuneration and expenses of the fifth and sixth defendants relating to the sale of the Properties at the rates charged from time to time for work of that type by the firm SV Partners;vi. deduct, from the proceeds of sale of the Properties, the legal expenses of and relating to transferring the Properties to the respective purchasers;vii. deduct, from the proceeds of sale of the Properties, the legal expenses and disbursements in respect of the sale including (without limitation) valuation fees, insurance premiums and all other out of pocket expenses;viii. deduct, from the proceeds of sale of the Properties, any legal costs ordered in respect of these proceedings.…8. ORDER that the fifth and sixth defendants shall pay from the Receivers Fund the following amounts in the following order of priority:j. the reasonable costs and expenses properly incurred by the fifth and sixth defendants in the performance of their duties and the exercise of their powers as trustees of the bankrupt estate in relation to steps taken by them in the preservation and protection of assets of the bankrupt estate specifically the Properties from claims in these proceedings (the Priority Costs);k. the reasonable costs and expenses properly incurred by the fifth and sixth defendants in the performance of their duties and the exercise of their powers as receivers of the rent of the Properties pursuant to their appointment as such by the Court on 17 December 2018 (the Receivership Costs);l. any reasonable costs and expenses properly incurred by the fifth and sixth defendants, in their capacity as trustees of the bankrupt estate of the first defendant, and incurred in the performance of their duties and the exercise of their powers as trustees, which are not included in (a) above, and which have been approved in accordance with the provisions of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Costs);m. an amount sufficient to annul the bankruptcy of the first defendant, provided that all other legal requirements are complied with, including but not limited to reporting requirements contained in the Bankruptcy Act 1966 (Cth);n. any balance is to be paid into an appropriate account held by this Court pending final determination of proceedings number (P) SYC 754 of 2019 in the Federal Circuit and Family Court of Australia or further order of this Court.

Ratio Decidendi

Legal Principle Established

A significant amount of the Further Receivership Costs claimed by the Trustees/Receivers are said to arise from the work performed by their solicitors, Polczynski Robinson, on their behalf. A description of the work performed by Polczynski Robinson and disbursements incurred by them is contained in an invoice dated 11 January 2024 (which was not previously identified by the Trustees/Receivers as forming part of the Receivership Costs) and in itemised work in progress reports by fee earner. The tasks performed are said to include:(1)finalising evidence for the application which led to the Principal Judgment (Remuneration Application);(2)ongoing liaising with the legal representatives for Angelina in relation to the Remuneration Application, rates notices, water notices and council tax;(3)preparing for and attending directions hearings and other hearings in these proceedings;(4)liaising with the counsel and solicitors for Angelina and the court in relation to the directions hearings in these proceedings;(5)preparing for and attending an informal settlement conference with Angelina and her solicitors and counsel;(6)providing advice, reports and conferring with the Trustees/Receivers on settlement discussions and negotiations;(7)reviewing evidence served by Angelina in relation to the Remuneration Application;(8)liaising with counsel in relation to the Remuneration Application and preparing for the hearing of it;(9)liaising with the solicitors and counsel for Angelina in relation to the preparation for the hearing of the Remuneration Application;(10)researching legal arguments raised by Angelina in relation to the Remuneration Application;(11)preparing for and attending the hearing of the Remuneration Application before me;(12)drafting schedules of the further Receivership Costs;(13)reviewing the Principal Judgment and liaising with the Trustees/Receivers on the next steps;(14)preparing further offers of settlement following the Principal Judgment; and(15)preparation of the costs review. The disbursements incurred by Polczynski Robinson include counsel fees, transcript fees, judgment fees and the fees incurred to obtain the Rosati Report on the reasonableness of the costs and expenses incurred by Polczynski Robinson. The amounts of the Further Receivership Costs claimed by the Trustees/Receivers as arising from these legal costs comprise the following fees and disbursements: The Trustees/Receivers rely on the Rosati Report in which the following opinions were expressed:(1)the hourly rates charged by Polczynski Robinson for the work performed by them were fair and reasonable and were appropriate for work in the final stages of a complicated proceeding in this court;(2)the fees incurred by counsel were fair and reasonable;(3)the general disbursements incurred by Polczynski Robinson are fair and reasonable;(4)the narrations as to the work performed by Polczynski Robinson and the times for each task generally in the itemised account appear to be fair and reasonable for acting in a matter of some complexity where there is no significant involvement from counsel; and(5)the costs charged by Polczynski Robinson for the work described in the itemised account appear to be generally fairly, reasonably and proportionately incurred and are fair and reasonable on a solicitor client basis.