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Abigroup Ltd v Abignano

Abigroup Ltd v Abignano

Case [1992] FCA 871 27 November 1992

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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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Details

AGLC: Abigroup Ltd v Abignano, G. [1992] FCA 871 ((1992) 39 FCR 74; (1992) 112 ALR 497)
Case: [1992] FCA 871
Decision Date: 27 NOVEMBER 1992

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Citations

115

AGLC Citation

Abigroup Ltd v Abignano, G. [1992] FCA 871 ((1992) 39 FCR 74; (1992) 112 ALR 497)

Most Recent Citation

Blue Frame Buildings Pty. Ltd. v Raydox Pty. Ltd [2011] VCC 1102

Cases citing this decision · 50 of 115 shown

Grant v Williams, in the matter of Williams
[2025] FedCFamC2G 430 Para 30

…a judgment creditor who has the immediate right to issue execution on the judgment. Such authorities included Abigroup v Abignano [1992] FCA 567; (1992) 39 FCR 74 ( Abigroup ) at 80. Ms Nolan observed that the judgment creditor must be able to issue execution on the judgment at the time of issue of the bankruptcy n…
Stolyar v Scott (Trustee), in the matter of Stolyar (Bankrupt) (Leave to Appeal)
[2024] FCA 1425 Para 16

…ect that the respondent’s exercise of the liberty to apply falls within the statement of the Full Court of this Court in Abignano v Abigroup [1992] 39 FCR 74 at [56] (cited in the primary judgment at [33]) and Australian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 (cited in the primary j…
Lin v Lin (No. 4)
[2024] VSC 759

…[19](1992) 39 FCR 74, 88.…
Scott (Trustee), in the matter of Stolyar (Bankrupt) v Stolyar (No 7)
[2024] FCA 1068 Para 6

…s that in making this application the Trustee relies on Order 40(d) of the 6 September Orders and refers to the principles in Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88 with respect to the usual scope of liberty to apply. She submits that the Trustee “is now seeking to have the Francis Street [P]roperty indemni…
In the Matter of Globaltech Corporation Pty Ltd (Administrators Appointed) [No 2]
[2024] WASC 259

…Abigroup Ltd v Abigano [1992] FCA 567; (1992) 39 FCR 74 Accord Pacific Holdings Pty Ltd v Gleeson [2011] NSWSC 1021 Australasian Memory Pty Ltd v Brien [2000] HCA 30; (2000) 200 CLR 270 Australian Hardboard Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 Australian Mud Company Ply Ltd v Glob…
Lehrmann v Network Ten Pty Ltd (Costs)
[2024] FCA 486 Para 9

…rther, again as a general proposition, it is the indemnified person’s liability to pay that triggers the indemnity: Abigroup Limited v Abignano (1992) 39 FCR 74 (at 83 per Lockhart, Morling and Gummow JJ). That being so, it seems to me, as I presently understand the position, Ms Wilkinson would have become entitled…
Owen v Sandhu
[2024] FCA 198 Para 19

…and Gleeson JJ, Pagone J agreeing). A final judgment is any judgment upon which the creditor is in a position to execute: Abigroup Ltd v Abignano [1992] FCA 871; (1992) 39 FCR 74 at 80 (Lockhart, Morling and Gummow JJ).…
Lin v Lin (No 3)
[2024] VSC 17

…[23](1992) 39 FCR 74, 88.…
Tong v Tong (No 2)
[2023] ACTSC 336

…4] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]... 51.In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88 the Full Federal Court (Lockhart, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a final order, notwi…
Owners of Majestic Rise and Majestic Crest Apartments Strata Plan 40793 v Spiro
[2023] FCA 722

…, 11 Magistrates Court (Civil Proceedings) Act 2004 (WA) ss 25, 46 Magistrates Court Act 2004 (WA) s 10 Strata Titles Act 1985 (WA) s 36 Cases cited: Abigroup Ltd v Abignano (1992) 39 FCR 74 Arwon Finance Pty Ltd v Wilson (No 2) [2023] FCA 657 Bechara v Bates [2021] FCAFC 34; (2021) 286 FCR 166 CFB18 v Reader Lawyers & Mediators…
Morrison v Drage
[2023] WADC 31 Para 15

…ingham Incorporated Football Club Limited [1972] Ch 596; Woolmington v Bronze Lamp Restaurant Pty Ltd [1984] 2 NSWLR 242; Abigroup Limited v Abignano (1992) 39 FCR 74 at 81-82). 55The present case is not one of principal debtor and surety, both liable to the creditor. Even in such a case, the obligation of the sure…
Keynes Capital Global Ltd v Guo
[2022] NSWCA 254 Para 38

…ally to questions of machinery which may arise from the implementation of a court’s orders” (J[172], citing Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88; [1992] FCA 567).…
David Barry Logistics Pty Ltd v The State of Victoria (No 3)
[2022] VSC 575

…lief amending originating process after final orders have been made – Whether Court functus officio – Scope and purpose of liberty to apply – Abigroup Ltd v Abignano (1992) 39 FCR 74 – Patterson v Humfrey (No 2) [2016] WASC 343 – Eckert v Roberts [2021] SASCA 73 – Effect of notation in ‘Other Matters’ – Dautry v Wemple (No 2) [2…
Xie v Chan (No 2)
[2022] NSWSC 1319

…ation Cited: Conveyancing Act 1919 (NSW), s 66G Real Property Act 1900 (NSW), s 86 Cases Cited: Abigroup Limited v Abignano (1992) 39 FCR 74; 112 ALR 497 Foundas v Arambatzis (No 3) [2020] NSWCA 87 Texts Cited: Nil Category: Principal judgment Parties: Jian Xi Xie (Plaintiff) Kwai Wan Chan (Defendant) Represen…
Commissioner of Taxation v Ross (No 2)
[2021] FCA 1088 Para 10

…dboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 ( Australian Hardboards ) at 213 – 215 [50] – [56]; Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88. It cannot be used to alter the substance of a final order that has already been made: Australian Hardboards at 214 [52] and the cases there cited.…
Eckert v Roberts
[2021] SASCA 73 Para 7

…subsequent orders of the court. It all depends on the circumstances of the case and the particular orders or decrees formulated by the court. [45] Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88 (Lockhart, Morling and Gummow JJ).…
Mohareb v State of New South Wales and Ors (No.2)
[2021] NSWDC 215

…cholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]. [51] In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88, the Full Federal Court (Lockhart J, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a fin…
Guo v Xu
[2021] NSWSC 460

…Foreign Judgments Regulations 1992 (Cth) reg 3 Uniform Civil Procedure Rules 2005 (NSW) r 25.14 Cases Cited: Abigroup Ltd v Abignano (1992) 39 FCR 74; [1992] FCA 567 Abraham v Abraham [2012] NSWSC 254 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Agar v Hyde (2000) 201 CLR 552; [2000]…
Singh v Fobupu Pty Ltd, in the matter of Singh
[2021] FCAFC 14 Para 19

…Her Honour found, in accordance with what Lockhart, Morling and Gummow JJ held in Abigroup Ltd v Abignano (1992) 39 FCR 74 at 80–81, that the Local Court orders were final judgments. That is because a creditor who has obtained a judgment against a debtor, upon which execution has not been stayed, can enforce that j…
Mervyn Jonathan Kitay in his capacity as liquidator of Computer Accounting and Tax Pty Ltd (In Liq) and Computer Accounting and Tax Pty Ltd (In Liq) [No 2]
[2020] WASC 373 Para 1

…of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. [10] Abigroup Ltd v Abigano [1992] FCA 567; (1992) 39 FCR 74, 88.…
McInerney, in the matter of Ghougassian v Ghougassian
[2020] FCA 1230 Para 20

…strued as including other circumstances which mean that the judgment or order cannot be enforced: Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74, 80 and Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572, 586. … 69In this case, the order suspending enforcement was made after the issue of the bankruptcy not…
Wong v Van Vlymen
[2020] NSWSC 841 Para 35

…which reserved further consideration of the matter, including further or alternative relief by way of damages and interest and liberty to apply (see Abigroup Ltd v Abignano (1992) 39 FCR 74, 88; Australian Hardwoods Limited v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [50], [51], [56], [58], [77], [84] (‘ Australian Har…
Singh v Fobupu Pty Ltd, in the matter of Singh
[2020] FCA 886 Para 1

…aning of the Bankruptcy Act at least includes a judgment upon which the creditor is in a position to issue execution: Abigroup Limited v Abignano (1992) 39 FCR 74 at 80.…
Roberts v Eckert
[2020] SASC 27 Para 13

…JA agreed) in Australian Hardboards Ltd v Hudson Investment Group Ltd .[22] [19] Penrice v Williams (1883) 23 ChD 353. [20] Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88. [21] CSIRO v Perry (No 2) (1988) 53 SASR 538 at 557. [22] [2007] NSWCA 104; (2007) 70 NSWLR 201 at [50]-[71].…
Hancock v Rinehart
[2019] NSWSC 1451 Para 374

…that the Court of Appeal’s reasons, in this respect, are consistent with the object of an order for liberty to apply ( Abigroup Limited v Abignano (1992) 39 FCR 74 at 88) and it is that type of permissible order which is sought in the notice of motion filed by HPPL and HDIO.…
Goldsmith v Kang
[2019] NSWSC 981

…ections Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Abigroup v Abignano (1992) 112 ALR 497 Aon Risk Services Limited v Australian National University [2009] HCA 27 Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 Colgate-Palmolive Company v Cussons Pty Ltd (1…
Owners Of Strata Plan 52843 and Psaros Pty Ltd
[2018] WASAT 113 Para 16

…rs concerning the implementation of the final order and would not extend to a substantive amendment of it (see in this regard Abigroup Ltd v Abignano (1992) 112 ALR 497 at 509 and also Wentworth v Woollahra Municipal Council (1983) (unreported, Court of Appeal, NSW, 31 March 1983)). In my view this purported applicat…
Lowbeer v De Varda
[2018] FCAFC 115 Para 6

…ver, that would depend upon whether it was entitled to enforce the judgment even though it was given in favour of Mr Lowbeer: Abigroup Ltd v Abignano (1992) 39 FCR 74 at 87.…
Elwick 9 Pty Ltd v Freeman
[2018] VSC 234

…ght to deal with matters that are essentially consequential upon the making of the original order: see Abigroup Ltd v Abignano (1992) FCA 39 FCR 74. Indeed, there are some useful comments contained in the judgment of the Full Court of the Federal Court of Australia in Abigroup and particularly at 509. These…
CFB18 v Reader Lawyers & Mediators
[2018] FCA 611 Para 1

…has been construed as including other circumstances which mean that the judgment or order cannot be enforced: Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74, 80 and Wiltshire-Smith v Mellor Olsson (1995) 57 FCR 572, 586. So, they include a case where the judgment or order cannot be enforced by reason of o…
Patrick Wong v Willem Van Vlymen
[2018] NSWSC 312

…Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 559; Kraft v Kupferwasser (1991) 23 NSWLR 236 at 244. [51] In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88 the Full Federal Court (Lockhart, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a…
Thorne ATF Thorne Family Trust v Ozibar Pty Ltd ATF Ozibar Unit Trust
[2017] FCCA 3273 Para 10

…In Abigroup Ltd v Abigano (1992) 39 FCR 74 at [79] – [80] the Full Court of the Federal Court of Australia considered the operation and effect of s.40(1)(g) and 40(3) of the Bankruptcy Act in its historical context. Their Honours said: It is clear from the reported cases and the text books on Bankruptcy, in particu…
Patterson v Humfrey [No 2]
[2016] WASC 343 Para 4

…In Abigroup Ltd v Abignano [1992] FCA 567; (1992) 39 FCR 74 Lockhart, Morling and Gummow JJ said: The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court…
Rubino v Pineview Property Holdings Pty Ltd
[2016] NSWSC 904

…ct 2009 (Cth) Real Property Act 1900 (NSW) Cases Cited: Abigroup Pty Ltd v Abignano (1992) 39 FCR 74 Australia and New Zealand Banking Group Ltd v Huybers [2014] NSWSC 720 Australian Hardboards Ltd v Hudson Investment Group Ltd [2007] NSWCA 104; (2007) 70 NSWLR 201 Breen v Williams [1996] HCA 57; (1996) 186 CLR 71…
Smits v Lillas and Loel Lawyers
[2015] FCCA 1092 Para 26

…In Abigroup Ltd v Abigano (1992) 39 FCR 74 at [79] – [80] the Full Court of the Federal Court of Australia considered the operation and effect of s.40(1)(g) and 40(3) of the Bankruptcy Act in its historical context. Their Honours said: It is clear from the reported cases and the text books on Bankruptcy, in particu…
Mulhern v Official Receiver
[2015] FCA 807 Para 12

…In Abigroup Ltd v Abignano (1992) 39 FCR 74, Lockhart, Morling and Gummow JJ held at 80: [T]he ground of non-compliance with the requirements of a bankruptcy notice, now embodied in s 40(1)(g), is available only, to borrow the words of Bowen LJ in Blanchett (at 307): “to a creditor who has prosecuted his claim to judgment, and i…
Katter v Melhem
[2015] NSWCA 213

…cholson [1974] 2 NSWLR 59 at 63; Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [97]. [51] In Abigroup Limited v Abignano (1992) 39 FCR 74 at 88, the Full Federal Court (Lockhart J, Morling and Gummow JJ) held that an order that a particular sum of money be paid to a particular party was a fin…
Sarks v Cassegrain
[2015] FCAFC 38 Para 17

…ustralian Hardboards Ltd v Hudson Investment Group Ltd (2007) 70 NSWLR 201 at [50] (Campbell JA, Tobias JA agreeing); Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88. It does not impede or otherwise inhibit the conclusion that Order 17 of Bergin CJ in Eq’s orders of 24 July 2012 is itself a final order. All that is…
Heywood v Sharpe (No.2)
[2015] FCCA 355

…Abigroup Limited v Abignano (1992) 39 FCR 74 Australia and New Zealand Banking Group Limited v Daher [2014] FCCA 365 Corney v Brien (1951) 84 CLR 343 Hargraves Secured Investments Limited v Sharpe [2013] NSWSC 177 Hargraves Secured Investments Limited v Waller [2009] NSWSC 1210 IMF (Australia) Limited v Meadow Springs Fairway Resort…
Lee v The Australian Construction and Building Group Pty Limited
[2015] NSWCATCD 18 Para 53

…ect to the Consent Orders between the parties. The applicants submit that the scope of liberty to apply provisions were stated in Abigroup v Abignano (1992) 112 ALR 497 at 509:…
Batterham v Goldberg
[2014] FCAFC 136 Para 4

…The first argument was that the respondents were not a proper party to the bankruptcy notice, based on the decision of Abigroup Ltd v Abignano (1992) 39 FCR 74 (“ Abigroup ”). The primary judge said (at [10]): I propose to deal with that point very shortly. Although Mr Kenzie is the person who performed the work and although tha…
Bronzewing Investments Pty Ltd v Moltoni Corporation Pty Ltd (Receivers & Managers Appointed)
[2014] WASC 362 Para 8

…, appointing the appropriate officer of the court to execute the necessary documents of conveyance so as to give title to the successful plaintiff: Abigroup Ltd v Abignano (1992) 39 FCR 74, 88. Prima facie, liberty to apply does not entitle a party to come and ask that the order itself shall be varied. On the other hand, there a…
Tzovaras v Jeandin
[2014] FCCA 2039 Para 7

…creditor can execute on the judgment. These principles were confirmed by the Full Federal Court in Abigroup Limited v Abignano .[11] [11] Abigroup Limited v Abignano (1992) 39 FCR 74 (Lockhart, Morling and Gummow JJ)…
Wright Prospecting Pty Limited v Hancock Prospecting Pty Limited [No 12]
[2014] WASC 149 Para 1

…In Abigroup Ltd v Abignano (1992) 39 FCR 74, the Full Court of the Federal Court held: The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the…
Armidale Dumaresq Council v Vorhauer (No 3)
[2014] NSWLEC 50

…31 Thus in Abigroup Ltd v Abignano (1992) 39 FCR 74; (1992) 112 ALR 497 the Full Federal Court of Australia described the scope and proper application of liberty to apply as follows (at 509 per Lockhart, Morling and Gummow JJ):…
Batterham v Goldberg Trading as Turner Freeman
[2014] FCCA 302 Para 10

…s contained in the amended application is a declaration that the notice was defective and invalid, based upon the decision of Abigroup Ltd v Abignano (1992) 112 ALR 497. It is argued that the creditor is not a proper party to the bankruptcy notice. I propose to deal with that point very shortly. Although Mr Kenzie is…
Buere v Commonwealth Bank of Australia
[2014] FCCA 164 Para 2

…law that a final judgment means any judgment upon which the creditors are in a position to issue execution: Abigroup Ltd v Abignano [1992] FCA 567 ; (1992) 39 FCR 74 at 79-81. If the leave of the Court is required to levy execution then the judgment is not a final judgment within s 40(1)(g) of the Act: Re Ide; Ex…
Wollondilly Shire Council v Foxman Environmental Development Services Pty Ltd (No 8)
[2013] NSWLEC 168 Para 1

…Thus in Abigroup Ltd v Abignano (1992) 39 FCR 74; (1992) 112 ALR 497 the Full Federal Court of Australia described the scope and proper application of liberty to apply as follows (at 509 per Lockhart, Morling and Gummow JJ):…
Koutavas v Kassem
[2013] FCCA 1166 Para 2

…or order that creates a debt payable to the creditor named in the Bankruptcy Notice. Thus the notice is invalid: Abigroup Ltd v Abigano (1992) 39 FCR 74.…
Wealthsure Pty Limited v Selig (No 2)
[2013] FCA 847 Para 5

…. It referred to authorities which considered the scope of a liberty to apply provision in the context of final orders: Abigroup Limited v Abignano (1992) 39 FCR 74 at 88; Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342 at [5] – [14]. In my opinion, this application is within the liberty to a…

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