Re Djakovic, Nikola v Ex Parte Ostojic, Bosko [1996] FCA 819

Re Djakovic, Nikola v Ex Parte Ostojic, Bosko [1996] FCA 819

The Court was not satisfied that the sequestration order ought not to have been made. The prior Warden's Court judgment against Verica Djakovic did not create alternative liability or an election barring proceedings against Nikola Djakovic, res judicata did not apply because the parties and causes of action were different, and the Anshun principle did not apply to later proceedings against a different respondent. The act of bankruptcy relied on was the return unsatisfied of a warrant of sale under s.40(1)(d)(ii), not failure to comply with a bankruptcy notice, and the instalment order made after presentation of the petition meant the debt was payable at a future time within...

Jurisdiction
Australia
Judgment Date
16 September 1996
Procedural Posture
Bankruptcy Application for Annulment Under S.153 B of the Bankruptcy Act 1966 / Reasons for Judgment and Minutes of Order
Outcome
Application dismissed; costs adjourned.
Legal Topics
['annulment of Bankruptcy' 'sequestration Order' 'act of Bankruptcy' "creditor's Petition" 'alternative Liability' 'res Judicata' 'anshun Estoppel' 'payment by Instalments' 'standing of Bankrupt']
['bankruptcy'] ['annulment of Bankruptcy' 'sequestration Order' 'act of Bankruptcy' "creditor's Petition" 'alternative Liability' 'res Judicata' 'anshun Estoppel' 'payment by Instalments' 'standing of Bankrupt']

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Procedural Posture

Bankruptcy Application for Annulment Under S.153 B of the Bankruptcy Act 1966 / Reasons for Judgment and Minutes of Order

Legal Issues

  1. 1 ["Whether the sequestration order ought not to have been made because the Magistrates' Court judgment against Nikola Djakovic should not have been made." "Whether Bosko Ostojic's judgment against Verica Djakovic precluded proceedings against Nikola Djakovic on the basis of alternative liability or election." 'Whether res judicata or the principle in Port of Melbourne Authority v Anshun Pty Ltd estopped Bosko Ostojic from proceeding against Nikola Djakovic.' "Whether orders for payment by instalments and setting aside a warrant of sale affected the act of bankruptcy or the creditor's petition." 'Whether Nikola Djakovic had standing to apply for annulment under s.153B of the Bankruptcy Act 1966.']

Ratio Decidendi

The Court was not satisfied that the sequestration order ought not to have been made. The prior Warden's Court judgment against Verica Djakovic did not create alternative liability or an election barring proceedings against Nikola Djakovic, res judicata did not apply because the parties and causes of action were different, and the Anshun principle did not apply to later proceedings against a different respondent. The act of bankruptcy relied on was the return unsatisfied of a warrant of sale under s.40(1)(d)(ii), not failure to comply with a bankruptcy notice, and the instalment order made after presentation of the petition meant the debt was payable at a future time within...

Court Disposition

Application dismissed; costs adjourned.

Orders

  • ['The application for annulment of the bankruptcy of Nikola Djakovic is dismissed.' 'The determination of the question of costs is adjourned to a date to be fixed.']