FEDERAL COURT OF AUSTRALIA
Di Iorio v Wagener [2015] FCA 524
Citation: Di Iorio v Wagener [2015] FCA 524 Appeal from: Application for leave to appeal: Wagener v Di Iorio [2015] FCCA 322 Parties: PETER DI IORIO v GARY WAGENER TRADING AS WAGENER BUILDING SERVICES File number: QUD 61 of 2015 Judge: RANGIAH J Date of judgment: 28 May 2015 Catchwords: BANKRUPTCY AND INSOLVENCY – application for leave to appeal – whether Federal Circuit Court erred in refusing extension of time to review sequestration order – whether grounds to go behind QCAT decision – whether fraud, collusion or miscarriage of justice – no basis to go behind QCAT decision Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 104
Federal Circuit Court (Bankruptcy) Rules 2006 (Cth) r 2.03
Bankruptcy Act1966 (Cth) ss 40(1), 41(1), 43, 52 and 52(1)(c)Cases cited: Corney v Brien (1951) 84 CLR 343
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [44]; [2002] FCAFC 361
Wren v Mahony (1972) 126 CLR 212Date of hearing: 21 May 2015 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 31 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr C Garlick
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 61 of 2015
BETWEEN: PETER DI IORIO
ApplicantAND: GARY WAGENER TRADING AS WAGENER BUILDING SERVICES
Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
28 MAY 2015
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 61 of 2015
BETWEEN: PETER DI IORIO
ApplicantAND: GARY WAGENER TRADING AS WAGENER BUILDING SERVICES
Respondent
JUDGE:
RANGIAH J
DATE:
28 MAY 2015
PLACE:
BRISBANE
REASONS FOR JUDGMENT
The applicant, Peter Di Iorio seeks leave to appeal against an interlocutory judgment of the Federal Circuit Court of Australia given on 9 February 2015. The Federal Circuit Court dismissed Mr Di Iorio’s application for an extension of time to seek review of a sequestration order made by a Registrar.
It is necessary to set out something of the procedural history of Mr Di Iorio’s litigation in order to place the present application into context.
Mr Di Iorio was a registered builder. The respondent, Gary Wagener, is a tradesman who seems to have specialised in cladding work. Mr Di Iorio engaged Mr Wagener to perform work in 2010, but a dispute ensued. Mr Wagener took proceedings against Mr Di Iorio in the Queensland Civil and Administrative Tribunal (“QCAT”), claiming that he was owed a debt of $8,150. A contested hearing took place on 26 August 2010, and an order was made that Mr Di Iorio pay Mr Wagener the sum of $8,240.
The QCAT order was filed in the Magistrates Court of…
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- Case
- [2015] FCA 524
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether there were exceptional circumstances that justified allowing the applicant to appeal against the Federal Circuit Court's refusal to extend the time limit for reviewing the QCAT order. The applicant argued that there were sufficient grounds to go behind the QCAT decision, namely fraud, collusion, or a miscarriage of justice. The court was required to determine whether these grounds were sufficient to warrant an appeal.
The court held that the applicant had not established a sufficient basis to go behind the QCAT decision. The applicant's claims of fraud, collusion, or a miscarriage of justice were not substantiated. The court found that the applicant had failed to provide compelling evidence to support these claims. Consequently, the court concluded that there were no exceptional circumstances to allow the appeal. The application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of the application.
Orders
Orders of the court
1. The application for leave to appeal is dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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