Stankovic v Namul Pty Ltd

[2013] NSWCA 41

Court of Appeal

New South Wales

Case Title:

Stankovic v Namul Pty Ltd

Medium Neutral Citation:

[2013] NSWCA 41

Hearing Date(s):

25 February 2013

Decision Date:

25 February 2013

Before:

Macfarlan JA

Decision:

The appellant's Notice of Motion is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - interlocutory relief refused - no issue of principle

Legislation Cited:

Real Property Act 1900

Category:

Procedural and other rulings

Parties:

Milovan Stankovic (Appellant)
Namul Pty Ltd (Respondent)

Representation

- Counsel:

Counsel:
Self-represented Appellant
M W Sneddon/C Alexander (Respondent)

- Solicitors:

Solicitors:
Self-represented Appellant
McLaughlin & Riordan

File Number(s):

CA 2013/50343

Decision Under Appeal

- Court / Tribunal:

Supreme Court

- Before:

Rein J

- Date of Decision: 

14 February 2013

- Citation:

Namul Pty Ltd v Milovan Stankovic [2013] NSWSC 115

- Court File Number(s):

SC 2013/34311

JUDGMENT

1. MACFARLAN JA: This is an application by the appellant made by notice of motion filed on 18 February 2013 for an order staying orders made by Rein J on 14 February 2013, for injunctive relief and for an order for return of some of his belongings that he alleges were taken by the respondent. The proceedings concern a property at Kellyville formerly owned by the appellant and his ex-wife.

2. Following the making of a sequestration order on 12 May 2009, Messrs Van der Velde and Cronan, acting as trustees of the bankrupt estate of the appellant and his ex-wife, sold the property at auction to a related company of the respondent. This company transferred the property to the respondent, which is the present registered proprietor. The respondent has subdivided the property and is in the course of selling individual lots.

3. Before Rein J the appellant contended that the sequestration order made by the Federal Magistrates Court was invalid and that the titles of the respondent and its related company were defeasible because they had knowledge that their titles were defective before they were registered and were thus guilty of fraud, (see s 43 of the Real Property Act 1900).

4. By judgment of 14 February 2013 Rein J rejected these contentions, holding that the appellant had failed to establish that the respondent, through its principal Mr Newham or otherwise, was guilty of or had knowledge of any fraudulent conduct. His Honour accepted Mr Newham's evidence in this regard and pointed to various other difficulties that the appellant would have in establishing an entitlement to relief.

5. In my view the appellant has not established that his appeal has sufficient prospects of success to warrant the granting of any interlocutory relief. At this stage at least he has not demonstrated any arguable basis for a conclusion that Rein J erred.

6. In his affidavit of 15 February 2013 the appellant describes the appointment of trustees in bankruptcy during the period in which he says the sequestration order was stayed as "the most glaring error". However, even if that were an error it would not entitle him to succeed in the present proceeding without proof that the present registered proprietor, the respondent, or perhaps its related company, was guilty of fraud.

7. In that regard the position remains as it was before Rein J, that the appellant has not even led any clear evidence of the respondent's knowledge at the relevant time of the trustee's allegedly defective title. Moreover, he has advanced no basis for concluding that Rein J's credit finding in relation to Mr Newham might be reversed on appeal.

8. In these circumstances, and as there are no matters of discretion that would favour the grant of relief, the appellant's notice of motion is dismissed with costs.

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