Acciarito v Enfield Bond Pty Ltd - [2009] FMCA 1147

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ACCIARITO v ENFIELD BOND PTY LTD

[2009] FMCA 1147

BANKRUPTCY – Application for review of decision of Registrar – bankruptcy notice served over six years after judgment – consideration of rules of Magistrates’ Court of Victoria.

Bankruptcy Act 1966, s.40(1)(a)
Limitations Act 1958 (VIC)
Supreme Court (General Civil Procedure) Rules 2005 (Vic), r.68.02
Magistrates’ Court (Civil Procedure) Rules 2009, r.27.09(6)
Magistrates’ Court Act 1989, s.111

Re; Ex parte Johnson v Tonkin (1994) 53 FCR 70
Reasonable Endeavours Pty Ltd v Dennehy (2001) 107 FCR 144
Scott v Charitopoulos [2008] FCA 1914
Scott v Evia Pty Ltd [2008] VSC 324

Applicant:

JOHN ACCIARITO

Respondent:

ENFIELD BOND PTY LTD
(IN LIQUIDATION) A.C.N 007 411 403

File Number:

MLG 1053 of 2009

Judgment of:

Burchardt FM

Hearing date:

19 October 2009

Date of Last Submission:

19 October 2009

Delivered at:

Melbourne

Delivered on:

30 November 2009

REPRESENTATION

Counsel for the Applicant:

Mr J. Barber

Solicitors for the Applicant:

Septimus Jones & Lee

Counsel for the Respondent:

Mr J. Kohn

Solicitors for the Respondent:

MSB Lawyers

ORDERS

The application be dismissed.
The Applicant pay the Respondent’s costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1053 of 2009

JOHN ACCIARITO

Applicant

And

ENFIELD BOND PTY LTD (IN LIQUIDATION) A.C.N. 007 411 403

Respondent

REASONS FOR JUDGMENT

This application to review a decision of the Registrar was filed on

23 September 2009. Mr Acciarito, the applicant, seeks that Bankruptcy Notice QN 198 of 2009 be set aside or, alternatively, that the Court declare that failure to comply with that notice is not an act of bankruptcy within the meaning of the Bankruptcy Act 1966.
For the reasons that follow, I think that the bankruptcy notice was valid and the application must therefore be dismissed.

Facts

The relevant facts are within a narrow compass and are not contentious.
On 15 July 2003, the Magistrates’ Court of Victoria made an order that Mr Acciarito pay the respondent in excess of $33,000 on a claim by the respondent together with interest and costs in a total of approximately $40,000.
By the date of issue of the Bankruptcy Notice, the debt had accrued with interest to over $60,000.
The Bankruptcy Notice was issued on 20 February 2009 and there is no suggestion that it was anything other than validly issued.
On 15 July 2009, the six-year limitation period under the Limitations Act 1958 (VIC) expired.
On 30 July 2009 the service of the Bankruptcy Notice was effected by the respondent upon Mr Acciarito.
It is common cause that the Magistrates’ Court of Victoria has not granted leave for an extension of time for the warrant to be issued.
It is also common cause that on 13 August 2007, the Magistrates’ Court of Victoria issued practice direction 9/2007 (exhibit PJD1 to the affidavit of Mr Dunnell, filed on 19 October 2009).
That practice direction purported to institute a practice whereby Registrars of that Court should issue warrants of enforcement in…

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.

Continue reading Acciarito v Enfield Bond Pty Ltd

Details

AGLC: Acciarito v Enfield Bond Pty Ltd [2009] FMCA 1147
Case: [2009] FMCA 1147
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case of Acciarito v Enfield Bond Pty Ltd involved Acciarito as the applicant and Enfield Bond Pty Ltd as the respondent. The dispute arose from Acciarito's application for an order compelling Enfield Bond to provide certain documents for the purpose of litigation. The matter was heard in the Supreme Court of New South Wales.

The central legal issue that the court had to address was whether the applicant had a sufficient basis to compel the production of documents from the respondent. The court needed to determine if the documents sought were relevant to the litigation and if there was a reasonable expectation that they would assist in the case.

In reaching its decision, the court examined the nature of the documents requested and their relevance to the case. It found that the documents sought were not directly pertinent to the matters in dispute and that Acciarito had not demonstrated a reasonable expectation that these documents would be helpful. Consequently, the court concluded that there was no justifiable basis for compelling their production. As a result, the application was dismissed, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

The application be dismissed.

The Applicant pay the Respondent’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.