Cosco v Tsatsoulis

[2002] FCA 358

FEDERAL COURT OF AUSTRALIA

Cosco v Tsatsoulis (in the matter of Tsatsoulis) [2002] FCA 358

BANKRUPTCY – bankruptcy notice – notice based on judgment in District Court of New South Wales – prescribed form of bankruptcy notice required statement of provision under which interest claimed – bankruptcy notice asserted that entitlement to interest was derived from s 83A District Court Act 1973 (NSW) – entitlement was in fact derived from s 85 District Court Act 1973 (NSW) – rate of interest correctly stated in bankruptcy notice – whether error was a failure to meet a requirement made essential by the Bankruptcy Act 1966 (Cth)

BANKRUPTCY – creditors petition – petition founded on non-compliance with bankruptcy notice – application to oppose creditors petition – debtors sought to dismiss petition under s 52(2)(b) of the Bankruptcy Act 1966 (Cth) alleging debtors had no assets of any value and oppression on the part of the creditors – whether debtors satisfied Court that for “other sufficient cause” a sequestration order ought not to be made

District Court Act 1973 (NSW) s 83A, 85
Bankruptcy Act 1966 (Cth) s 52(1), 52(2)(b)

Radich v Bank of New Zealand (1993) 45 FCR 101 referred to
Cain v Whyte (1933) 48 CLR 639 applied
Ling v Enrobook Pty Ltd (1997) 74 FCR 19 referred to
The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 followed
Kleinwort Benson Australia Limited v Crowl (1988) 165 CLR 71 considered

JOHN NICCOLO COSCO, KAY VIOLET COSCO AND TRIGAMIST HOLDINGS PTY LIMITED v GEORGE TSATSOULIS AND MARY TSATSOULIS
(IN THE MATTER OF GEORGE TSATSOULIS)

N 7536 OF 2001

HELY J
28 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7536 OF 2001

BETWEEN:	JOHN NICCOLO COSCO, KAY VIOLET COSCO AND TRIGAMIST HOLDINGS PTY LIMITED APPLICANTS
AND:	GEORGE TSATSOULIS AND MARY TSATSOULIS (IN THE MATTER OF GEORGE TSATSOULIS) RESPONDENTS
JUDGE:	HELY J
DATE OF ORDER:	28 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The petition be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7536 OF 2001

BETWEEN:	JOHN NICCOLO COSCO, KAY VIOLET COSCO AND TRIGAMIST HOLDINGS PTY LIMITED APPLICANTS
AND:	GEORGE TSATSOULIS AND MARY TSATSOULIS (IN THE MATTER OF GEORGE TSATSOULIS) RESPONDENTS

JUDGE:	HELY J
DATE:	28 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Bankruptcy proceedings No N 7560 of 2000 were instituted by the present applicants against the present respondents.  On 31 October 2000 the petition against the respondents in those proceedings  was dismissed.  Clause 4 of the orders entered on 1 November 2000 is as follows:

   “4.Note that the Applicant Creditors have received from the Respondent Debtors a bank cheque in the sum of $69,940.12.  The debtors acknowledge that a further sum of interest of $4,953.43 is due on the judgment debt as at 30 October 2000 and that the dismissal of…