Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Kanovics v Lean [2002] FCA 803
BANKRUPTCY –appeal from decision of Federal Magistrate – whether the Federal Magistrate erred in law in concluding that any security ordered by a court as a condition of release of bail is a charging order for the purposes of s 118 of the Bankruptcy Act 1996 (Cth) – nature of a charging order within meaning of s 118(12) of the Bankruptcy Act 1996 (Cth).
Bankruptcy Act 1996 (Cth) s 30, s 118, s 122, s 188, s 189AA Enforcement of Judgments Act 1991 (SA) s 8, s 14
LAZLO ZOLTAN KANOVICS v GRAHAM TREVOR LEAN
S236 OF 2001
MARSHALL J
24 JUNE 2002
MELBOURNE (HEARD IN ADELAIDE)
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S236 OF 2001
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN: LAZLO ZOLTAN KANOVICS
APPELLANT
AND: GRAHAM TREVOR LEAN
RESPONDENT
JUDGE: MARSHALL J
DATE OF ORDER: 24 JUNE 2002
WHERE MADE: MELBOURNE (HEARD IN ADELAIDE)
THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the Federal Magistrates Court of 12 December 2001 be set aside. 3. The matter be remitted to the Federal Magistrates Court for further hearing and determination. 4. The costs of the appeal be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY S236 OF 2001
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN: LAZLO ZOLTAN KANOVICS
APPELLANT
AND: GRAHAM TREVOR LEAN
RESPONDENT
JUDGE: MARSHALL J
DATE: 24 JUNE 2002
PLACE: MELBOURNE (HEARD IN ADELAIDE)
REASONS FOR JUDGMENT 1 This is an appeal from the whole of the orders and judgment of a learned Federal Magistrate dated12 December 2001. The proceeding before his Honour involved an application by Mr Lean ("the respondent") pursuant to the Bankruptcy Act 1966 (Cth) ("the Act"). The respondent's application was originally made to this Court but was transferred to the Federal Magistrates Court. 2 The respondent is the controlling trustee of Mr Daryl Francis Roder's bankrupt estate. By his application, the respondent sought to stay a particular proceeding in the Magistrates Court (Civil Division) South Australia ("the local Magistrates Court") between Mr Roder and Mr Kanovics ("the appellant"). The appellant is a judgment creditor of Mr Roder. The respondent also sought a declaration that certain property, namely gemstones, being held by the solicitors for the appellant under an order of the local Magistrates Court, was property of Mr Roder which had vested in the respondent as controlling trustee. 3 On 12 December 2001, the Federal Magistrate found that the rights which the appellant had over the gemstones was a charge which had been created by an order of the local Magistrates Court and that the charge was void under the Act. 4 By notice of appeal filed on 21 December 2001, the appellant appealed from the Federal Magistrate's decision.
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