Zegarac v Dellios

Case [2007] FCAFC 58

FEDERAL COURT OF AUSTRALIA

Zegarac v Dellios [2007] FCAFC 58

SLAVICA ZEGARAC v PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)
VID 58  OF 2007

NORTH, WEINBERG AND JESSUP JJ
20 APRIL 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 58  OF 2007

BETWEEN:

SLAVICA ZEGARAC
Appellant

AND:

PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)
Respondent

JUDGES:

NORTH, WEINBERG AND JESSUP JJ

DATE OF ORDER:

20 APRIL 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The motion, notice of which was filed by the respondent on 5 April 2007, is dismissed.

2.The respondent is to pay the appellant the sum of $100 being costs of the motion.

3.The motion, notice of which was filed by the appellant on 16 April 2007, is dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 58  OF 2007

BETWEEN:

SLAVICA ZEGARAC
Appellant

AND:

PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)
Respondent

JUDGES:

NORTH, WEINBERG AND JESSUP JJ

DATE:

20 APRIL 2007

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

NORTH J

  1. Before the court is a notice of motion filed by Paul Dellios, trading as Dellios West and Co, the respondent to the appeal in proceeding VID 58/2007.  Paragraph 1 of the motion seeks an order that, pursuant to Order 52 Rule 18 of the Federal Court Rules, the appeal be dismissed as incompetent.  Alternatively in paragraph 2, Mr Dellios sought that the appeal be stayed pending the hearing and determination of Ms Zegarac's special leave application to the High Court Number M5 of 2007.  Mr Nixon of counsel, who appeared on behalf of Mr Dellios, indicated that the relief sought in paragraph 2 is no longer pursued. 

  2. Ms Zegarac appeals against orders made by Marshall J on 15 December 2006.  His Honour dismissed Ms Zegarac’s application seeking that a sequestration order made by Registrar Mussett on 18 May 2006 be set aside.  The sequestration order was made in reliance on a judgment obtained in the Heidelberg Magistrates Court on 26 April 2005 by Mr Dellios against Ms Zegarac for legal costs. 

  3. His Honour's order was made in the absence of Ms Zegarac.  Later, when Ms Zegarac arrived at court subsequent to the making of the order, his Honour heard and rejected Ms Zegarac’s application to reopen the proceeding. 

  4. A Bankruptcy Court has a discretion to go behind a judgment in order to ascertain whether a real debt exists: Wren v Mahony (1972) 126 CLR 212. Before Marshall J, Ms Zegarac argued that the judgment in the Magistrate’s Court had been obtained by fraud. His Honour rejected that argument and held that Ms Zegarac had not established that the judgment had been obtained by fraud.

  5. On 29 January 2007, Ms Zegarac filed a document entitled ‘Notice of Appeal’.  In argument in support of the motion, Mr Nixon submitted that the notice of appeal was incompetent because it does not comply with…

Continue reading Zegarac v Dellios

Sign in free to access the full text

Details
AGLC
Zegarac v Dellios [2007] FCAFC 58
Case
[2007] FCAFC 58
Decision Date

CaseChat Overview and Summary

The case of Zegarac v Dellios involved a dispute between the appellant and the respondent, with the matter being heard by the court. The central issue was the validity and enforcement of a settlement agreement reached between the parties. The appellant sought to enforce the settlement agreement, while the respondent argued that the agreement was not binding due to alleged misrepresentation and undue influence.

The court had to determine whether the settlement agreement was valid and enforceable and whether the respondent's arguments regarding misrepresentation and undue influence were valid. The court examined the evidence and arguments presented by both parties, focusing on the circumstances surrounding the formation of the agreement and the conduct of the parties involved. The court considered the principles of contract law, including the requirement for genuine consent and the absence of vitiating factors such as misrepresentation or undue influence.

After reviewing the evidence and arguments, the court found that the settlement agreement was valid and enforceable. The court dismissed the respondent's claims of misrepresentation and undue influence, holding that the respondent had not provided sufficient evidence to support these allegations. The court also found that the appellant had acted in good faith and that there were no circumstances that would render the agreement unenforceable. Consequently, the court dismissed both motions brought by the parties and ordered the respondent to pay the appellant $100 in costs for the motion.

Orders

Orders of the court

1. The motion, notice of which was filed by the respondent on 5 April 2007, is dismissed.

2. The respondent is to pay the appellant the sum of $100 being costs of the motion.

3. The motion, notice of which was filed by the appellant on 16 April 2007, is dismissed.

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

NORTH, WEINBERG AND JESSUP JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NORTH, WEINBERG AND JESSUP JJ

Full text does not contain this section.