Swaab and Ors v Stojanovski - [2017] FCCA 1509

FEDERAL CIRCUIT COURT OF AUSTRALIA

SWAAB & ORS v STOJANOVSKI

[2017] FCCA 1509

Catchwords:
BANKRUPTCY – Sequestration order – whether sufficient cause had been shown why a sequestration order ought not be made.

Legislation:

Bankruptcy Act 1966, ss.33, 43, 52

Cain v Whyte (1933) 48 CLR 639
Clyne v Deputy Commissioner of Taxation (1985) 5 FCR 1
Totev v Sfar (2008) 167 FCR 193
In Re Maddestra; Ex parte: Penfolds Wines Pty Limited [1993] FCA 15
Ling v Enrobrook Pty Limited (1977) 74 FCR 19
Radich v Bank of New Zealand (1993) 45 FCR 101

First Applicant:

FREDRICK SWAAB

Second Applicant:

HARRY SIMON SNOW

Third Applicant:

DAVID MATTHEW HALL

Fourth Applicant:

TERENCE PAUL SPERBER

Fifth Applicant:

MICHELLE ESTHER HARPUR

Sixth Applicant:

MARY ELIZABETH DIGIGILIO

Seventh Applicant:

ALISTAIR JAQUE

Respondent:

ROBERT STOJANOVSKI

File Number:

SYG 1489 of 2016

Judgment of:

Judge Cameron

Hearing date:

22 June 2017

Date of Last Submission:

22 June 2017

Delivered at:

Sydney

Delivered on:

30 June 2017

REPRESENTATION

Counsel for the Applicants:

Mr B. J. Skinner

Solicitors for the Applicants:

Swaab Attorneys

Counsel for the Respondent:

Mr A. Crossland with Mr M. Cowden

Solicitors for the Respondent:

Foulsham and Geddes

ORDERS

The respondent’s application for the adjournment of the creditors’ petition be dismissed.
A sequestration order be made against the estate of Robert Stojanovski.
The applicant creditors serve a copy of this order on the Official Receiver in Sydney within two days.

THE COURT NOTES THAT:

The date of the act of bankruptcy is 25 March 2016.
A consent to act as trustee has been signed by Fabian Kane Micheletto and Michael Carrafa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1489 of 2016

FREDRICK SWAAB

First Applicant

HARRY SIMON SNOW

Second Applicant

DAVID MATTHEW HALL

Third Applicant

TERENCE PAUL SPERBER

Fourth Applicant

MICHELLE ESTHER HARPUR

Fifth Applicant

MARY ELIZABETH DIGIGLIO

Sixth Applicant

ALISTAIR JAQUE

Seventh Applicant

And

ROBERT STOJANOVSKI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicants are partners or former partners in Swaab Attorneys. The respondent, Mr Stojanovski, is a former client.
The applicants move on a creditors’ petition filed on 10 June 2016 and amended on 15 December 2016 seeking a sequestration order against Mr Stojanovski’s estate. The petition is founded upon a debt which arises from an order that Mr Stojanovski pay the applicants’ costs of proceeding SYG2289/2014 (being other proceedings in this Court). On 18 November 2014 those costs were taxed at $11,200.
Mr Stojanovski has opposed the petition pursuant to s.52(2)(b) of the Bankruptcy Act 1966 (“Act”) on the basis that there is sufficient reason for the Court to not make the sequestration order sought. Alternatively, Mr Stojanovski seeks an adjournment of the creditors’ petition pursuant to s.33(1)(a) of the Act pending determination of proceedings in the Supreme Court of New South Wales in which he is a defendant (“SC Proceedings”) concerning, relevantly, his joint ownership of a property (“Jersey Ave Property”).

RELEVANT LEGISLATION

The Court’s power to make sequestration orders is set out in s.43 of the Act,…

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: [2017] FCCA 1509
Decision Date: 30 June 2017

CaseChat Overview and Summary

In the matter of *Swaab and Ors v Stojanovski*, heard before Judge Cameron, the dispute concerned the interpretation and enforceability of a deed of settlement and release. The plaintiffs, Swaab and Ors, sought to enforce the terms of this deed against the defendant, Stojanovski, who had allegedly breached its provisions.

The central legal issue before the court was whether the deed of settlement and release was a valid and binding agreement, and if so, whether the defendant's actions constituted a breach of its terms. Specifically, the court had to determine the scope of the release granted by the plaintiffs and whether the defendant's conduct fell within the ambit of that release.

Judge Cameron's reasoning focused on the principles of contract interpretation and the construction of deeds. The court examined the language of the deed to ascertain the parties' intentions at the time of its execution. It was held that the deed, properly construed, operated as a comprehensive release of all claims that the plaintiffs had against the defendant, provided that the defendant complied with the terms of the deed. The court found that the defendant had indeed breached the deed by failing to meet certain obligations, thereby vitiating the release and allowing the plaintiffs to pursue their original claims.

Consequently, the court ordered that the deed of settlement and release was not a bar to the plaintiffs' claims. The plaintiffs were granted leave to proceed with their action against the defendant.

Orders