ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
GENNARO ABIGNANO First Appellant
GENALLCO PTY LIMITED Second Appellant
AND:
THOMAS RICHARD WENKART Respondent
JUDGES:
RYAN, HEEREY AND TAMBERLIN JJ
DATE OF ORDER:
13 NOVEMBER 1998
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS:
That the appeal be dismissed with costs.
Note:Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 238 of1998
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
GENNARO ABIGNANO First Appellant
GENALLCO PTY LIMITED Second Appellant
AND:
THOMAS RICHARD WENKART Respondent
JUDGES:
RYAN, HEEREY AND TAMBERLIN JJ
DATE:
13 NOVEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
THE COURT: The Court has come to a clear view about the disposition of this appeal and, in the light of that view, does not need to trouble counsel about the substance of the appeal.
This is an appeal from an order of a single Judge of the Court on 5 March 1998 setting aside a bankruptcy notice. The bankruptcy notice was issued on 24 December 1997 and served on the respondent to this appeal, Dr Wenkart, on 5 January 1998. The bankruptcy notice claimed a debt of $1,338,344.82 including accrued interest of $30,807.72 as due under a judgment of the Supreme Court of New South Wales in action No 50057 of 1995. There was a succession of judgments in that action, the first in favour of the plaintiff against the defendant and the others on three cross-claims in which successive cross-respondents were held liable to indemnify the defendant, Abigroup Ltd, in respect of its liability to the plaintiff.
The order on the third cross-claim to which Mr Wenkart was the cross-respondent was in these terms:
10.THE COURT DECLARES that THOMAS RICHARD WENKART is liable to indemnify ALAN PITMAN in respect of his liability to indemnify GENNARO ABIGNANO under paragraph 6.
11.Upon the undertaking to the court by ALAN PITMAN to pay to GENNARO ABIGNANO the amount of $1,307,537.10 without deduction therefrom, immediately upon payment of that amount by THOMAS RICHARD WENKART to ALAN PITMAN, and so long as he holds such sum or any part thereof to receive and hold the same on trust for GENNARO ABIGNANO, THE COURT ORDERS that THOMAS RICHARD WENKART pay ALAN PITMAN the amount of $1,307,537.10.
12.THE COURT FURTHER ORDERS that THOMAS RICHARD WENKART pay ALAN PITMAN’S costs of the Third Cross Claim including the amount of costs for which ALAN PITMAN is liable to pay to GENNARO ABIGNANO under paragraph 8.
It was found by the learned primary Judge in this Court that no formal undertaking to the effect of paragraph 11 of that order had been given as at the date of judgment. We were informed by Counsel for the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Abignano v Wenkart [1998] FCA 1468
Case
[1998] FCA 1468
Decision Date
CaseChat Overview and Summary
This appeal concerns a bankruptcy notice issued by Gennaro Abignano and Genallco Pty Limited, the appellants, against Thomas Richard Wenkart, the respondent. The bankruptcy notice claimed a debt of $1,338,344.82, including interest, under a judgment of the Supreme Court of New South Wales. The central legal issue was whether the orders in the Supreme Court judgment created an immediate debt payable by Wenkart to Alan Pitman or if the debt only became payable after Pitman provided an undertaking to the Supreme Court. The primary judge had set aside the bankruptcy notice, finding that the debt was not immediately payable until Pitman provided the required undertaking.
The court of appeal, consisting of Ryan, Heerey, and Tamberlin JJ, held that the primary judge's interpretation of the Supreme Court's order was incorrect. The court found that the orders in the Supreme Court judgment did indeed create an immediate debt payable by Wenkart to Pitman. However, the court concluded that entertaining the appeal was tantamount to an abuse of process. This conclusion was reached because, after the primary judge's decision, the appellants issued a fresh bankruptcy notice based on the same judgment debt. The subsequent proceedings regarding this new notice had already been addressed by another judge, Hill J, who dismissed the application to set aside the notice. Thus, continuing with the appeal would result in conflicting orders.
The Federal Court dismissed the appeal with costs, finding that the appellants' decision to issue a new bankruptcy notice after the primary judge's decision was a legitimate course of action, but it could not be pursued in parallel with the appeal. The court considered this approach to be an abuse of process. Consequently, the appeal was dismissed, and costs were awarded against the appellants.