Stankovic v Van Der Velde [2012] FCA 1436

Stankovic v Van Der Velde [2012] FCA 1436

15.05 per cent of the net proceeds of the Kellyville Property was fairly attributable to protected compensation moneys and thus not divisible among the bankrupt's creditors; the remainder distributed according to associations of title and the respective beneficial interests, with a lien for trustees' remuneration and expenses over the creditors' and first cross-respondent's portions.

Parties
Applicant: Milovan Stankovic; Second Cross Respondent: Milka Dordevic; First Respondent / First Cross Claimant: Terry Grant Van Der Velde; Second Respondent / Second Cross Claimant: Jason Shane Cronan
Jurisdiction
Australia
Judgment Date
14 December 2012
Procedural Posture
Application and Cross Claim in Bankruptcy / Judgment Following Hearing
Outcome
Orders made, including declaration of entitlements to proceeds, setting aside Trustees' decision, stay of orders, and partial dismissal of application and cross-claim.
Legal Topics
Proceeds of Property Sale, Protected Money Under Bankruptcy Act, Apportionment of Proceeds, Entitlement to Compensation Moneys
Bankruptcy Proceeds of Property Sale Protected Money Under Bankruptcy Act Apportionment of Proceeds Entitlement to Compensation Moneys

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Parties

Milovan Stankovic

Applicant

Milka Dordevic

Second Cross Respondent

Terry Grant Van Der Velde

First Respondent / First Cross Claimant

Jason Shane Cronan

Second Respondent / Second Cross Claimant

Procedural Posture

Application and Cross Claim in Bankruptcy / Judgment Following Hearing

Legal Issues

  1. 1 Whether proceeds of sale of jointly owned property are distributable among creditors of the bankrupt under Bankruptcy Act 1966 (Cth) s 116
  2. 2 Whether compensation for personal injury is protected money for the purposes of the Bankruptcy Act
  3. 3 To what extent proceeds of property can be attributed to protected money and excluded from the bankrupt estate

Ratio Decidendi

15.05 per cent of the net proceeds of the Kellyville Property was fairly attributable to protected compensation moneys and thus not divisible among the bankrupt's creditors; the remainder distributed according to associations of title and the respective beneficial interests, with a lien for trustees' remuneration and expenses over the creditors' and first cross-respondent's portions.

Court Disposition

Orders made, including declaration of entitlements to proceeds, setting aside Trustees' decision, stay of orders, and partial dismissal of application and cross-claim.

Orders

  • Declaration of joint equitable interest in the property immediately prior to sequestration.
  • Declaration of beneficial ownership of proceeds: 50% to second cross-respondent, 15.05% to first cross-respondent, 34.95% to cross-claimants under s 58 of Bankruptcy Act.