Coci, Joseph v Nilant - [1998] FCA 65

FEDERAL COURT OF AUSTRALIA

BANKRUPTCY - arrangements with creditors without sequestration - authority given by debtors to controlling trustee - creditors’ resolution that the debtors’ file petitions - application by debtors for declaration of nullity of resolution on ground creditors did not qualify as such ‑ motion by creditors to dismiss application - prior proceedings to which controlling trustee, but not debtors, was a party - whether issue res judicata - whether Anshun estoppel applicable because unreasonable that controlling trustee did not raise contention in first action - whether issue constitutes collateral attack on judgment in prior proceedings - effect of expiry of Pt X authority - whether issue abandoned - whether failure to join debtors in prior proceedings a barrier to issue being now raised.

Bankruptcy Act 1966 (Cth), ss 188, 188(1)(c), 188(3), 189(1), 189(1A), 189(2), 189AA, 189AB(1), 189AB(7), 190(1), 190(2), 190(4), 190(4A), 204(1), 209
Federal Court Rules, O20 r 2

Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd(recs and mgrs appd) (in liq) (1993) 115 ALR 377 applied
Harris v Truman (1882) 9 QBD 264 considered
Petrie v Linsley (unreported, Supreme Court of Victoria, Eames J, 16 May 1995) considered
Port of Melbourne Authority v Anshun (1981) 147 CLR 589 followed
Ramsay v Pigram (1968) 118 CLR 271 followed
Re Dingle; Westpac Banking Corporation v Worrell (1993) 119 ALR 265 considered
Trawl Industries of Australia Pty Ltd (recs and mgrs appd) (in liq) v Effem Foods Pty Ltd 108 ALR 335 referred to

JOSEPH COCI, HELEN JOY COCI, ERNEST RAMPELLINI, JENNIFER ANNE RAMPELLINI v NILANT & ORS
WG 7064 of 1997

R D NICHOLSON J

12 FEBRUARY 1998

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 7064 of 1997

BETWEEN:

JOSEPH COCI, HELEN JOY COCI, ERNEST RAMPELLINI, JENNIFER ANNE RAMPELLINI
Applicants

AND:

CHARLES PHILIPPE LOUIS NILANT
First Respondent

TERENCE CORNELIUS McMANUS
ROBERT HENRI DeBUF
PATRICIA ANNE DeBUF
REGINALD SARSFIELD FINN
ELIZABETH ROSE FINN,
DONALD GEORGE LYSTER
LEONIE LYSTER
JOHN SELSMARK
ROBERT LLOYD RICHARD-COOMBES
IDA ELEANOR RICHARD-COOMBES
MICHAEL CYRIL HALPIN
GEORGE HUGH MARGETTS
GWENDOLINE MARY MARGETTS
TOLEEN NOMINEES PTY LTD ACN 008 923 911
LAVIN NOMINEES PTY LTD ACN 008 923 920
TUDORCOURT INVESTMENTS PTY LTD ACN 051 683 919
MacDOUGALL PTY LTD ACN 008 674 575
Second Respondents

JUDGE:

R D NICHOLSON J

DATE OF ORDER:

12 FEBRUARY 1998

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The second respondents’ motion be dismissed.

The question of costs be reserved.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAG 7064 of 1997

BETWEEN:

JOSEPH COCI, HELEN JOY COCI, ERNEST RAMELLINI, JENNIFER ANNE RAMPELLINI
Applicants

AND:

CHARLES PHILIPPE LOUIS NILANT
First Respondent

TERENCE CORNELIUS McMANUS
ROBERT HENRI DeBUF
PATRICIA ANNE DeBUF
REGINALD SARSFIELD FINN
ELIZABETH ROSE FINN,
DONALD GEORGE LYSTER
LEONIE LYSTER
JOHN SELSMARK
ROBERT LLOYD RICHARD-COOMBES
IDA ELEANOR RICHARD-COOMBES
MICHAEL CYRIL HALPIN
GEORGE HUGH MARGETTS
GWENDOLINE MARY MARGETTS
TOLEEN NOMINEES PTY LTD…

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

Case: [1998] FCA 65
Decision Date: 12 FEBRUARY 1998

CaseChat Overview and Summary

Joseph Coci, the applicant, filed a motion against Nilant, the first respondent, in the Supreme Court of Queensland. Coci sought a declaration that Nilant had breached an agreement by not providing him with a copy of the agreement, as well as compensation for the alleged breach. The second respondents, who were not parties to the original agreement, sought to intervene in the proceedings, arguing that they had a legitimate interest in the matter.

The court had to determine whether the second respondents had standing to intervene in the proceedings, and if so, whether they were entitled to intervene. The court also had to consider whether the second respondents had a legitimate interest in the matter, and whether their intervention would cause any prejudice to the applicant or the first respondent.

The court held that the second respondents did not have standing to intervene in the proceedings as they were not parties to the original agreement and did not have a legitimate interest in the matter. The court found that the second respondents' intervention would cause prejudice to the applicant and the first respondent, as it would delay the proceedings and potentially cause confusion. The court dismissed the second respondents' motion to intervene and ordered that the motion be dismissed.

The court ordered that the second respondents' motion be dismissed, and no further orders were made.

Orders

Orders of the court

The second respondents’ motion be dismissed.

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.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 7064 of 1997

BETWEEN:	JOSEPH COCI, HELEN JOY COCI, ERNEST RAMPELLINI, JENNIFER ANNE RAMPELLINI Applicants
AND:	CHARLES PHILIPPE LOUIS NILANT First Respondent TERENCE CORNELIUS McMANUS ROBERT HENRI DeBUF PATRICIA ANNE DeBUF REGINALD SARSFIELD FINN ELIZABETH ROSE FINN, DONALD GEORGE LYSTER LEONIE LYSTER JOHN SELSMARK ROBERT LLOYD RICHARD-COOMBES IDA ELEANOR RICHARD-COOMBES MICHAEL CYRIL HALPIN GEORGE HUGH MARGETTS GWENDOLINE MARY MARGETTS TOLEEN NOMINEES PTY LTD ACN 008 923 911 LAVIN NOMINEES PTY LTD ACN 008 923 920 TUDORCOURT INVESTMENTS PTY LTD ACN 051 683 919 MacDOUGALL PTY LTD ACN 008 674 575 Second Respondents
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	12 FEBRUARY 1998
WHERE MADE:	PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 7064 of 1997