Zegarac v Rambaldi

[2009] FCA 1463

FEDERAL COURT OF AUSTRALIA

Zegarac v Rambaldi [2009] FCA 1463

PRACTICE AND PROCEDURE – motion to summarily dismiss proceeding – whether a sequestration order ought to have been made – whether proceeding is frivolous or vexatious –  proceeding dismissed

Bankruptcy Act 1966 (Cth) s 153B(1)
Federal Court Rules O 20 r 5

Dellios v Zegarac [2006] FCA 1733, referred to

Dellios v Zegarac (No 2) [2006] FCA 1831, referred to
General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, cited
Transcript of Proceedings, Zegarac v Paul Dellios t/as Dellios West & Co (High Court of Australia, Gummow J, 6 September 2007), referred to
Walton v Gardiner (1993) 177 CLR 378, cited
Zegarac v Dellios [2005] VSC 264, referred to
Zegarac v Dellios [2006] FMCA 34, referred to

SLAVICA ZEGARAC v MR GESS RAMBALDI and MR ANDREW YEO

VID 518 of 2009

TRACEY J

11 DECEMBER 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 518 of 2009

BETWEEN:

SLAVICA ZEGARAC
Applicant

AND:

MR GESS RAMBALDI
First Respondent

MR ANDREW YEO
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	11 DECEMBER 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The title of the proceeding be amended by substituting Mr Gess Rambaldi and Mr Andrew Yeo as respondents in place of Pitcher Partners.

2.The proceeding be dismissed.

3.The applicant pay the respondents’ costs of the proceeding.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 518 of 2009

BETWEEN:

SLAVICA ZEGARAC
Applicant

AND:

MR GESS RAMBALDI
First Respondent

MR ANDREW YEO
Second Respondent

JUDGE:	TRACEY J
DATE:	11 DECEMBER 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Ms Slavica Zegarac became bankrupt on 18 May 2006.  A sequestration order was made by a Registrar on the petition of Mr Paul Dellios (trading as Dellios West & Co).  That order was based on a judgment given by the Magistrate’s Court of Victoria dated 26 April 2005.  An appeal against the decision of the Magistrate was dismissed by the Supreme Court on 28 June 2005:  see Zegarac v Dellios [2005] VSC 264.

2. Mr Gess Rambaldi and Mr Andrew Yeo were appointed joint and several trustees of the bankrupt estate of Ms Zegarac.  They are members of the firm Pitcher Partners. 

3. On 12 October 2005, Ms Zegarac applied to the Federal Magistrates Court for an order setting aside the bankruptcy notice on the ground that she had a counter claim, set-off or cross demand against Mr Dellios which exceeded the amount of the debt owed to him.  On 16 December 2005, Federal Magistrate Phipps dismissed the application.  He provided reasons for that decision on 19 January 2006: see Zegarac v Dellios [2006] FMCA 34.

4. On 13 December 2006, Marshall J refused an application for leave to appeal…