Stolyar v Scott (Leave to appeal)

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FEDERAL COURT OF AUSTRALIA

Stolyar v Scott (Leave to appeal) [2024] FCA 1182

File number(s): NSD 530 of 2024
Judgment of: PERRAM J
Date of judgment: 11 October 2024
Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal judgment determining distribution of proceeds from sale of property – where both parties claim the balance of the proceeds following payments to other creditors – whether applicant should be granted leave to appeal where she seeks to raise new grounds on appeal that were not put to the primary judge – whether orders below final or interlocutory
Cases cited:

Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 6) [2024] FCA 379

Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar [2022] FCA 691

Stolyar v Scott (Trustee) [2023] FCAFC 61; 410 ALR 346

Stolyar v Scott [2023] HCASL 129

University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; 60 ALR 68
Division: General Division
Registry: New South Wales
National Practice Area: Commercial and Corporations
Sub-area: General and Personal Insolvency
Number of paragraphs: 18
Date of hearing: 24 September 2024
Counsel for the Applicant: The Applicant was represented by her son with leave of Court.
Counsel for the Respondent: Mr S Golledge SC and Mr D Edney
Solicitor for the Respondent: Matthews Folbigg Pty Ltd

ORDERS

NSD 530 of 2024

IN THE MATTER OF STOLYAR (BANKRUPT)
BETWEEN:

MS FAINA STOLYAR

Applicant
AND:

ANDREW SCOTT IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF IAN STOLYAR AND BETH NGOC NGUYEN

Respondent

ORDER MADE BY:

PERRAM J

DATE OF ORDER:

11 OCTOBER 2024

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

PERRAM J:

  1. Ms Faina Stolyar applies for leave to appeal from orders made on 18 April 2024.  I permitted Ms Stolyar to be represented by her son, Mr Ian Stolyar, on the application for leave to appeal.  The respondent, Mr Scott, is the trustee of Mr Ian Stolyar’s bankrupt estate and also of the bankrupt estate of his wife, Ms Beth Nguyen.  Meaning no disrespect, I will refer to them as Ian and Beth.

  2. Leaving aside the costs orders made, the orders the subject of the application are as follows:

    1.The applicant is entitled to be exonerated by the first respondent in respect of the National Australia Bank Ltd mortgage which was registered on the title of the property located at 701/152-162 Campbell Parade, Bondi Beach, New South Wales until its discharge on 3 March 2023.

    2.The applicant’s solicitors distribute the balance of the proceeds of sale held pursuant to Order 24 of the orders made on 6 September 2022 and any interest which has accrued upon it to the applicant.

  3. These orders determine the rights of the trustee in bankruptcy and Ms Stolyar to the proceeds of the sale of premises at 701/152-162 Campbell Parade, Bondi Beach…

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Details
Case
[2024] FCA 1182
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Stolyar v Scott (Leave to appeal) involved a dispute over the distribution of proceeds from the sale of a property between Stolyar and Scott. Both parties claimed the remaining balance of the proceeds following payments to other creditors. The applicant sought leave to appeal a judgment that had determined the distribution of those proceeds, arguing that new grounds for appeal should be considered, which had not been presented to the primary judge. The central legal issue was whether the applicant should be granted leave to appeal given that she sought to introduce new grounds for appeal that were not previously raised. Additionally, the court had to determine whether the orders made by the primary judge were final or interlocutory in nature.

The court examined the grounds for appeal and noted that the applicant had not demonstrated a compelling reason to depart from the general rule that new grounds should not be raised on appeal. The court emphasised the importance of finality in judicial decisions and the need to adhere to the principle that appeals should not be used to introduce new arguments. Furthermore, the court considered whether the orders made by the primary judge were final or interlocutory. The court concluded that the orders were final as they determined the distribution of the proceeds and resolved the primary dispute between the parties.

Consequently, the court dismissed the application for leave to appeal. The court held that the applicant had not shown sufficient grounds to justify the introduction of new arguments on appeal, and the principle of finality in judicial decisions was paramount. The court also determined that the orders below were final, meaning that the applicant's opportunity to challenge those orders had already passed. The court ordered that the application for leave to appeal be dismissed with costs. The final orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for leave to appeal be dismissed with costs.

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

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Ratio Decidendi

Legal Principle Established

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