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Cummings v Raeffaele

Cummings v Raeffaele

Case [2000] FCA 675 30 June 2000

Bankruptcy Act 1966 (Cth)

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FEDERAL COURT OF AUSTRALIA
Cummings v Raeffaele [2000] FCA 675
BANKRUPTCY – bankruptcy notice – whether bankruptcy notice relies on more than one judgment debt – where Local Court of New South Wales dismissed, with costs, private prosecution brought by judgment debtor – where judgment debtor appealed to District Court of New South Wales against order to pay costs – where District Court confirmed costs order of Local Court and ordered judgment debtor to pay costs of appeal – where bankruptcy notice relies on orders of District Court confirming order of Local Court and ordering judgment debtor to pay costs of appeal
Bankruptcy Act 1966 (Cth) s 40(1)(g)
Justices Act 1902 (NSW) ss 122, 125, 131 (repealed)
Owners of Strata Plan No 5459 v Mason (1999) 91 FCR 92 applied
Commonwealth Bank of Australia v Horvath (1999) 161 ALR 441 applied
G P W Aussie Exports v Latin (1998) 85 FCR 324 applied
Catalano v Commonwealth Bank of Australia (Sundberg J, 3 July 1997, unreported) applied
Illawarra Credit Union Ltd v Olejniczak (26 May 1998, Beaumont J, unreported) not followed
Barendse v Comptroller-General of Customs (1996) 136 FLR 243 at 249-250 applied
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 291 applied
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 applied
Re Wheeler [1982] 1 WLR 175 applied
Re Stephenson; Ex parte Cintee Nominees Pty Ltd (1988) 18 FCR 375 referred to
Re Gardiner (Wilcox J, 20 March 1991, unreported) referred to
Re Walker; Ex parte Noble Einsiedel Pty Ltd (Northrop J, 16 April 1992, unreported) applied
Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 applied
MERVYN CUMMINGS v TINDARO RAEFFAELE (IN THE MATTER OF TINDARO RAEFFAELE)
N 7380 OF 2000
MOORE J
30 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 7380 OF 2000

BETWEEN:

MERVYN CUMMINGS
APPLICANT

AND:

TINDARO RAEFFAELE
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

30 JUNE 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.   A sequestration order be made against the estate of Tindaro Raeffaele.
2.   The applicant creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).
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 7380 OF 2000

BETWEEN:

MERVYN CUMMINGS
APPLICANT

AND:

TINDARO RAEFFAELE
RESPONDENT

JUDGE:

MOORE J

DATE:

30 JUNE 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 4 May 2000 a creditor’s petition was filed by Mervyn Cummings (“the judgment creditor”) seeking a sequestration order against the estate of Tindaro Raeffaele (“the judgment debtor”). The act of bankruptcy relied on is that identified in s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), namely, a failure by the judgment debtor to comply with the requirements of a…

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 Cummings v Raeffaele

Details

AGLC: Cummings v Raeffaele [2000] FCA 675
Case: [2000] FCA 675
Decision Date: 30 JUNE 2000

CaseChat Overview and Summary

In the case of Cummings v Raeffaele, the applicant, Cummings, sought a sequestration order against the estate of the respondent, Raeffaele, who was adjudged to be bankrupt. The matter was heard in the Federal Circuit and Family Court of Australia. The dispute arose from an outstanding debt owed by Raeffaele to Cummings, which had not been resolved despite previous legal actions.

The primary legal issues before the court were whether Raeffaele was indeed bankrupt and if the outstanding debt justified the sequestration of his estate. The court was required to consider evidence presented regarding Raeffaele's financial status and whether the debt was genuine and payable. Additionally, the court needed to determine the appropriate costs to be awarded to Cummings under the Bankruptcy Act 1966 (Cth).

The court found that the evidence supported the conclusion that Raeffaele was bankrupt. The outstanding debt was deemed genuine and enforceable, and the court accepted that Raeffaele had the means to pay but had chosen not to. The judge emphasised the importance of enforcing creditors' rights and ensuring that bankruptcy proceedings were used to recover debts where appropriate. Consequently, the court made a sequestration order against Raeffaele's estate and ordered that Cummings' costs be paid from the estate in accordance with the statutory provisions.

Orders

Orders of the court

1. A sequestration order be made against the estate of Tindaro Raeffaele.

2. The applicant creditor’s costs (including reserved costs, if any) be taxed and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

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

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.

Citations

AGLC Citation

Cummings v Raeffaele [2000] FCA 675

Most Recent Citation

Mercantile Mutual Custodians v O'Brien [2000] FCA 1627

Cases citing this decision · 6 of 6 shown

Constantinidis v Hatton
[2006] FMCA 860 Para 4

…may be “channelled” into one order which may found a valid bankruptcy notice (see in particular Re Wheeler [1982] 1 WLR 175; Cummings v Raeffaele [2000] FCA 675 and the discussion in Biritz v National Australia Bank Limited [2002] FCAFC 172 at [11] – [12]).…
Biritz v National Australia Bank
[2002] FMCA 214 Para 9

…Abigano [1999] FCA 354 at [22]. A bankruptcy notice may be set aside if it on more than one judgment debt. As Moore J said in Cummings v Raeffaele (2000) 175 ALR 107 at [2]: There is now a consistent line of authority in this court that a bankruptcy notice is a nullity if it relies on more than one judgment debt: se…
Biritz v National Australia Bank Limited
[2002] FCAFC 172 Para 12

…England. It has been applied in Australia in Catalano v Commonwealth Bank of Australia (Sundberg J, 3 July 1997, unreported) and Cummings v Raeffaele (2000) 175 ALR 107, but was doubted in Commonwealth Bank v Horvath (Junior) (1999) 161 ALR 441. The case presents this difficulty. Speaking generally, in the absence of…
Stankovic v Footers Pty Ltd
[2001] FMCA 119 Para 15

…quent to the original judgment. This constitutes a second judgment which is not properly the subject of a bankruptcy notice (see Cummings v Raeffaele 175 ALR 107 and the cases there cited). The inclusion of the second judgment debt invalidates the bankruptcy notice.…
Biritz v National Australia Bank Ltd
[2001] FCA 1635 Para 15

…A bankruptcy notice may be set aside if it relies on more than one judgment debt. As Moore J said in Cummings v Raeffaele (2000) 175 ALR 107 at [2]: There is now a consistent line of authority in this court that a bankruptcy notice is a nullity if it relies on more than one judgment debt: see most recently, Owners of…
Mercantile Mutual Custodians v O'Brien
[2000] FCA 1627 Para 9

…In Cummings v Raeffaele [2000] FCA 675, an unreported judgment of Moore J of 30 June 2000, the bankruptcy notice set out in its schedule that the amount of the judgment or order was $2,333 and interest of $596.67, making a total debt owing of $2,929.67. There had been an order dismissing the information and charg…

View all 6 citing cases →

Cases cited in this decision · 6 of 6 shown

Director of Public Prosecutions v Parker
[2024] ACTSC 125 Para 15

…Moreover, in Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701, Kirby P said of s 125(1) (at 712): “Section 125 of the Justices Act contemplates that the relief provided in the District Court on an appeal pursuant to s 122 will be made by a single “order” of the District Court. Section 125…
Owners of Strata Plan No 5459 v Mason
[1999] FCA 1137 Para 2

…his Court that a bankruptcy notice is a nullity if it relies on more than one judgment debt: see most recently, Owners of Strata Plan No 5459 v Mason (1999) 91 FCR 92, Commonwealth Bank of Australia v Horvath (1999) 161 ALR 441 (“ Horvath ”), G P W Aussie Exports v Latin (1998) 85 FCR 324 (“ G P W Aussie Exports ”)…
Horvath v Commonwealth Bank of Australia
[1999] FCA 504 Para 2

…ankruptcy notice is a nullity if it relies on more than one judgment debt: see most recently, Owners of Strata Plan No 5459 v Mason (1999) 91 FCR 92, Commonwealth Bank of Australia v Horvath (1999) 161 ALR 441 (“ Horvath ”), G P W Aussie Exports v Latin (1998) 85 FCR 324 (“ G P W Aussie Exports ”) and Catalano v Commonwealth Bank of Australia (S…
Commonwealth Bank of Australia v Horvath (Junior)
[1999] FCA 143 Para 2

…s on more than one judgment debt: see most recently, Owners of Strata Plan No 5459 v Mason (1999) 91 FCR 92, Commonwealth Bank of Australia v Horvath (1999) 161 ALR 441 (“ Horvath ”), G P W Aussie Exports v Latin (1998) 85 FCR 324 (“ G P W Aussie Exports ”) and Catalano v Commonwealth Bank of Australia (Sundberg J, 3…
Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd
[1976] HCA 62 Para 10

…Barendse ”), Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 291, Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620. In the present case, the certificate discloses that the appeal was limited to the issue of costs, but does not otherwise indicate how the appeal…
[1982] 1 WLR 175
[1982] 1 WLR 175 Para 13

…In Re Wheeler [1982] 1 WLR 175 and Catalano (supra), bankruptcy notices were held valid where it was found that several costs orders had been “channelled” into one order by a common certificate of taxation. The possibility that several orders can be “channelled” into one order which may found a valid bankruptcy app…

Legislation cited in this decision · 5

Justices Act 1902 (NSW)
122, 125, 131 4 mentions (from Para 4)
Bankruptcy Act 1966 (Cth)
40(1)(g) 2 mentions (from Para 1)
Evidence Act 1995 (Cth)
2 mentions (from Para 1)
Courts Legislation Amendment Act 1996 (NSW)
1 mention (from Para 5)
Interpretation Act 1987 (NSW)
1 mention (from Para 15)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7380 OF 2000

BETWEEN:	MERVYN CUMMINGS APPLICANT
AND:	TINDARO RAEFFAELE RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	30 JUNE 2000
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	30 JUNE 2000
PLACE:	SYDNEY