Event and Time
Event Description
On 17 May 2022, Associate Justice Mathews ordered the sale of the property located at 231 Old Cape Schanck Road, Boneo, to enforce a judgment debt obtained by the late George Hrycenko against his son, Victor Hrycenko, the property’s registered owner. Further orders facilitating the sale were made on 12 August 2022. George Hrycenko passed away on 6 June 2020, and his son Nicholas became the executor of his estate. On 28 October 2021, a sequestration order was made against Victor due to a creditor's petition by George. This order was challenged and later set aside by the Full Court of the Federal Court on 9 September 2022.
Application and Claims
Victor Hrycenko seeks to set aside the 17 May 2022 order due to:
- The Full Court order’s effect negating the sequestration order, implying it was as if never made.
- His exclusion from the sale proceedings constituted a breach of procedural fairness, as he was an essential party who was not heard.
- He argues that no order for sale should be made given these circumstances.
Nicholas Hrycenko contests the application, asserting:
- The decision made on 17 May 2022 cannot be set aside by a Trial Division judge without an appeal.
- Procedural fairness was not denied as counsel represented a related party.
- Even if the order is set aside, a new order for sale should be issued.
Judicial Decisions
The court accepts Victor's arguments, concluding that:
- He was unlawfully excluded from proceedings due to the invalid sequestration order, resulting in a denial of procedural fairness.
- The judicial sale orders are set aside because the proceeding failed to include a necessary party, thus rendering it invalid.
Dispute Points and Legal Basis
Dispute Points
- Victor Hrycenko's Claims: