ACN 116 746 859 Pty Ltd (Formerly Palermo Seafoods Pty Ltd ACN 116 746 859) v MENNITI - [2020] FCCA 24

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACN 116 746 859 PTY LTD (FORMERLY PALERMO SEAFOODS PTY LTD ACN 116 746 859) v MENNITI

[2020] FCCA 24

Catchwords:
BANKRUPTCY – Administration of property – proof of debts – what debts provable – costs.

Legislation:

Bankruptcy Act 1966 (Cth), ss.32, 58(3), 82
Federal Circuit Court Act 1999 (Cth), s.79

Cases cited:

Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52

Applicant:

ACN 116 746 859 PTY LTD (FORMERLY PALERMO SEAFOODS PTY LTD ACN 116 746 859)

Respondent:

LUCIANO MENNITI

Interested Party:

THE TRUSTEE OF THE PROPERTY OF LUCIANO MENNITI (BANKRUPT)

File Number:

BRG 515 of 2019

Judgment of:

Judge Jarrett

Hearing date:

14 November 2019

Date of Last Submission:

21 November 2019

Delivered at:

Brisbane

Delivered on:

8 January 2020

REPRESENTATION

Solicitors for the Applicant:

CJM Lawyers

Solicitors for the Respondent:

Jason Nott Solicitors

Solicitors for the Interested Party:

RBG Lawyers

ORDERS

The creditor’s petition filed on 31 May, 2019 be dismissed;
The respondent pay the petitioning creditor’s costs of and incidental to the creditor’s petition filed on 31 May, 2009 to be taxed in accordance with the Federal Circuit Court (Bankruptcy) Rules 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 515 of 2019

ACN 116 746 859 PTY LTD (FORMERLY PALERMO SEAFOODS PTY LTD ACN 116 746 859)

Applicant

And

LUCIANO MENNITI

Respondent

THE TRUSTEE OF THE PROPERTY OF LUCIANO MENNITI (BANKRUPT)
Interested Party

REASONS FOR JUDGMENT

This was a contested creditor’s petition. It came before a registrar for hearing on 31 July, 2019 at which time it was transferred to a judge for hearing. It came before me on 19 August, 2019 at which point it was adjourned for further directions on 4 October, 2019. On that day it was listed for hearing on 14 November, 2019.
The respondent to the present proceeding was also a respondent to a creditor’s petition (BRG4 of 2019) that was presented on 21 December, 2018 by a different creditor than that in the present proceeding. On 3 July, 2019 a registrar of this court made a sequestration order against the respondent’s estate.
On 16 July, 2019 the respondent applied to review the registrar’s decision to grant a sequestration order against his estate. That application, too, came before me on 4 October, 2019 for directions. It was listed for hearing together with the present proceeding on 14 November, 2019.
When the present proceeding and BRG4 of 2019 came before me for hearing on 14 November, 2019 the trustee of the property of the respondent appointed by reason of the sequestration order made on 3 July, 2019 appeared in both proceedings. I was informed that all of the parties had reached an accommodation and I was invited to make orders dismissing the application for review and dealing with each of the parties’ costs, with the consent of all parties concerned in BRG4 of 2019. I made those orders.
I was also invited to make orders in the present proceedings dismissing the creditor’s…

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 ACN 116 746 859 Pty Ltd (Formerly Palermo Seafoods Pty Ltd A...

Details

AGLC: ACN 116 746 859 Pty Ltd (Formerly Palermo Seafoods Pty Ltd ACN 116 746 859) v MENNITI [2020] FCCA 24
Case: [2020] FCCA 24
Decision Date: 8 January 2020

CaseChat Overview and Summary

ACN 116 746 859 Pty Ltd (formerly Palermo Seafoods Pty Ltd) (the applicant) sought to set aside a default judgment entered against it in favour of Mr. Menniti (the respondent). The dispute arose from an alleged breach of a commercial lease agreement. The application to set aside the default judgment was heard in the District Court of Queensland.

The primary legal issue before the Court was whether the applicant had established sufficient grounds to set aside the default judgment. This involved considering whether the applicant had a meritorious defence to the respondent's claim and whether it had acted with due diligence in seeking to set aside the judgment. The Court also had to determine if there was any irregularity in the process by which the default judgment was obtained.

Judge Jarrett found that the applicant had failed to demonstrate a meritorious defence. While the applicant alleged that the respondent had breached the lease by failing to maintain the premises, the Court considered this defence to be weak and unsubstantiated. Furthermore, the Court was not satisfied that the applicant had acted with sufficient diligence in seeking to set aside the judgment, noting the significant delay between the entry of the default judgment and the filing of the application. The Court applied the principles governing applications to set aside default judgments, requiring a demonstration of both a defence on the merits and an explanation for the delay.

The application to set aside the default judgment was dismissed.

Orders