Stankovic v Van Der Veld

REASONS FOR JUDGMENT 1 This proceeding was commenced by application filed on 3 May 2012. The relief claimed in the application was in substance an order that the decision of the trustee in bankruptcy of 6 March 2012 be set aside, and a declaration that the bankrupt's interest in a property situated in President Avenue, Kellyville (the Kellyville Property), was purchased substantially with protected money. The application also sought an order that the proceeds from the sale of that property not vest in the trustee and do not constitute property divisible amongst the creditors of the bankrupt estate. 2 By notice of cross-claim, the trustees in bankruptcy sought a declaration that, immediately prior to the sequestration order made in respect of the estate of the bankrupt, he held an equitable joint interest in the Kellyville Property and a declaration that the trustees have been the owners of one half of the net proceeds of sale of that property, and the former wife of the bankrupt has been the owner of the other half of the net proceeds. The trustees sought a declaration that they are the owners of the proceeds of sale on trust for the subjects of the statutory trust created by the sequestration order, the bankrupt's wife personally and the bankrupt. 3 On 9 November 2012, I directed that the questions raised by the cross-claim be listed for hearing today. When the matter was called on for hearing, counsel for the applicant applied for an adjournment on the basis that a further proceeding, NSD 1571 of 2012, had been commenced on 12 October 2012, in which Mr Stankovic claimed, amongst other things, an order that his bankruptcy be annulled and an order for restoration of the Kellyville Property to him, together with damages. 4 I have made directions by consent for the filing of interlocutory applications in relation to the statement of claim filed in that further proceeding, and for summary dismissal of the proceeding. Those applications are to be listed for directions on 8 March 2013. Counsel for the applicant contended that, in the light of the currency of the further proceeding, it would be inappropriate to continue with the hearing of any question concerning the extent to which the proceeds of the sale of the Kellyville Property are to be treated as available for distribution amongst the creditors or otherwise. 5 Had the further proceeding seeking annulment been commenced in a timely fashion, following the sequestration order, it would of course have been appropriate to resolve that question first before embarking on the question raised by the cross-claim. However, some four years have elapsed since the making of the sequestration order. Various other proceedings have been commenced and disposed of in that time. In all of the circumstances, I do not consider that it is appropriate to defer the determination of the question raised by the cross-claim simply because of the possibility that the current annulment proceeding might succeed. Accordingly, I do not propose to adjourn the hearing of the proceeding this afternoon. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.