Brancatisano v Brancatisano

[2014] FCA 1424

FEDERAL COURT OF AUSTRALIA

Brancatisano v Brancatisano [2014] FCA 1424

Citation:	Brancatisano v Brancatisano [2014] FCA 1424
Parties:	MARY BRANCATISANO v FRANCESCO ANTHONY BRANCATISANO
File number:	VID 510 of 2014
Judge:	PAGONE J
Date of judgment:	15 December 2014
Catchwords:	BANKRUPTCY – application to set aside bankruptcy notice – whether counterclaim, setoff or cross-demand equalling or exceeding amount of judgment debt.
Date of hearing:	15 December 2014
Date of last submissions:	15 December 2014
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	5
Solicitor for the Applicant:	Mr S Hill, Robert Wood & Associates
Counsel for the Respondent:	Mr S Morris
Solicitor for the Respondent:	Settle Legal

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 510 of 2014

BETWEEN:	MARY BRANCATISANO Applicant
AND:	FRANCESCO ANTHONY BRANCATISANO Respondent

JUDGE:	PAGONE J
DATE OF ORDER:	15 DECEMBER 2014
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 510 of 2014

BETWEEN:	MARY BRANCATISANO Applicant
AND:	FRANCESCO ANTHONY BRANCATISANO Respondent

JUDGE:	PAGONE J
DATE:	15 DECEMBER 2014
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application to set aside a bankruptcy notice that was issued on 29 July 2014.  The applicant sought an adjournment of the hearing which was opposed and which I dismissed for the reasons expressed orally.  The bankruptcy notice is based upon an order made by the Costs Court of the Supreme Court of Victoria on 3 July 2014, quantifying an amount of costs at $90,661.23.  The bases for seeking to set aside the bankruptcy notice are two claims which the applicant claims says that she has against the respondent, and the possibility of a third claim, which is identified in a letter of 12 December 2014 sent to the respondent’s solicitors.

2. The application to set aside the bankruptcy notice was issued on 1 September 2014 and interlocutory orders were made on 7 October 2014 for the hearing of the application that the bankruptcy notice should be set aside.  It is well‑established law that an applicant must satisfy the court in an application to set aside a bankruptcy notice of the existence of a counterclaim, set‑off or cross‑demand equalling or exceeding the amount of the judgment debt.  That is a very serious obligation and burden that falls upon the applicant, and one which the applicant undertook when the proceedings were issued in September upon the judgment debt that had been created the previous July.

3. We are now in December and the material available to me is unsatisfactory as the basis for setting aside the bankruptcy notice.  It consists of statements in an affidavit which are general and at best amount to an assertion of a claim which does not satisfy me that the claim is likely to succeed or has any prospect of success.  That is not to say that there may not be a claim that might conceivably succeed.  It is to say, however, that the materials in the affidavit simply do not establish it.  To that can be added the contents of the letter of 12 December 2014 where the assertions of claims are effectively repeated.  The letter, if anything, goes to establish that the applicant today cannot satisfy the court of the requisite claims, set‑offs or counter‑claims to meet the judgment debt.

4. It is plain from the letter that those currently appearing for her are not in a position to say any more than that one claim has been made and that two other claims may be the subject of further investigation.  The court is very sympathetic to people in the applicant’s position, particularly in the circumstances of claims that have arisen from inter‑family disputes.  It is very unfortunate that the family has got to the stage that it has reached, and very unfortunate that members of the family are engaged in this litigation, leading in the current instance to seeking to have a mother declared bankrupt.

5. However, the court cannot act upon sympathy.  It must act upon law and upon the material which is before the court.  In this case that required Mrs Brancatisano to pursue her claim diligently and adequately.  Unfortunately she has not done so, and in the circumstances, her application must be dismissed. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.

Associate: 

Dated:        22 December 2014