Arnautovic & Sutherland t/as Jirsch Sutherland & Co v Cvitanovic (as trustee of the bankrupt estate of Adrian Lawrence Rosee) [2011] FCA 809

FEDERAL COURT OF AUSTRALIA

Arnautovic & Sutherland t/as Jirsch Sutherland & Co v Cvitanovic (as trustee of the bankrupt estate of Adrian Lawrence Rosee) [2011] FCA 809 Citation: Arnautovic & Sutherland t/as Jirsch Sutherland & Co v Cvitanovic (as trustee for the bankrupt estate of Adrian Lawrence Rosee) [2011] FCA 809

Appeal from: Cvitanovic & Anor v Arnautovic & Anor [2010] FMCA 888

Parties: SULE ARNAUTOVIC AND RODERICK MACKAY SUTHERLAND T/AS JIRSCH SUTHERLAND & CO (ABN 57 045 615 571) and JOHN KUKULOVSKI IN HIS CAPACITY AS LIQUIDATOR OF ROSEE ROAD HAUL PTY LTD (IN LIQUIDATION) (ACN 103 475 976) AND PROTRANS TRANSPORT SOLUTIONS PTY LTD (IN LIQUIDATION) (ACN 129 867 705) v DANIEL I CVITANOVIC AS TRUSTEE FOR THE BANKRUPT ESTATE OF ADRIAN LAWRENCE ROSEE and DANIEL I CVITANOVIC AS TRUSTEE FOR THE BANKRUPT ESTATE OF KYLIE ROSEE

File number(s): NSD 1792 of 2010

Judge: KATZMANN J

Date of judgment: 20 July 2011

Corrigendum: 8 September 2011

Catchwords: APPEAL AND NEW TRIAL – Practice and procedure – whether further evidence should be admitted – matters occurring after trial – principles applicable – whether denial of procedural fairness BANKRUPTCY AND INSOLVENCY – Bankruptcy Act 1966 (Cth) s 122(1) – equitable charges created by unstamped instruments – whether creditor was a "secured creditor" TAXATION – Stamp duties – Duties Act 1997 (NSW) ss 211, 304 – whether stamping after execution has retrospective effect

Legislation: Acts Interpretation Act 1901 (Cth) s 13 Bankruptcy Act 1966 (Cth) ss 5(3), 55, 58(1) Duties Act 1997 (NSW) ss 205, 207, 208, 211, 304 Evidence Act 1995 (Cth) ss 55, 56, 60, 136 Federal Court of Australia Act 1976 (Cth) ss 27, 37M Federal Court Rules O 3, O 52 r 36 Stamp Duties Act 1920 (NSW) s 84(4) Supreme Court Act 1970 (NSW) s 75A