Gangemi v Osborne - [2008] FMCA 1694

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GANGEMI v OSBORNE

[2008] FMCA 1694

BANKRUPTCY – Application to set aside bankruptcy notice – allegation notice an abuse of process – alternatively, time for compliance be extended pending outcome of appeal – Court of Appeal assessed prospects of success of appeal as low – allegation respondent acting in collusion with another to frustrate the appeal and other legal proceedings – allegation that use of bankruptcy jurisdiction not invoke bona fide – application dismissed.

Bankruptcy Act 1966, ss.41(6A) and 41(6B)

Brunninghausen v Glavanics (1998) FCA 280
Bryant v Commonwealth Bank of Australia, unreported 9 November 1994 FCA
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Conway v Jackson [2001] FCA 230
O’Loughlin v Glenmont Investments Pty Ltd (2001) 191 ALR 336
William v Spautz (1992) 174 CLR 509

Applicant:

ANTONIO GANGEMI

Respondent:

RICHARD OSBORNE

File Number:

MLG 916 of 2008

Judgment of:

O'Dwyer FM

Hearing date:

4 December 2008

Delivered at:

Melbourne

Delivered on:

17 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Kohn

Solicitors for the Applicant:

Isakow Lawyers

Counsel for the Respondent:

Mr Gronow

Solicitors for the Respondent:

Christopher Bunnett

ORDERS

The application filed on 28 July 2008 is dismissed, with costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 916 of 2008

ANTONIO GANGEMI

Applicant

And

RICHARD OSBORNE

Respondent

REASONS FOR JUDGMENT

Introduction

By his application filed on 28 July 2008, the applicant seeks to set aside bankruptcy notice VN 1222 of 2008 which was served on him on 11 July 2008 on the basis that it was an abuse of process.
Alternatively, he seeks that the time for compliance with the notice be extended to a time not less than 21 days after the Victorian Court of Appeal hands down its decision in an appeal filed by the applicant against the judgment that forms the basis of the notice. The judgment by his Honour Hargrave J of the Victorian Supreme Court ordered the applicant to pay to the respondent the sum of $250,000, plus other charges and interest. With those other charges and interest, the amount due under the judgment is $387,405.51.

Background

In summary, the Supreme Court proceedings centred around a development project where the respondent was found to have conditionally lent money to the applicant that was repayable should a requisite building permit not be obtained by a specified date. The proceeding was conducted over 17 hearing days resulting in a 166 page judgment by Hargrave J which he delivered on 22 May 2008.
The bankruptcy notice was issued on 20 June 2008. It is to be noted that the notice was issued before the applicant had lodged an appeal on 27 June 2008. The service of the bankruptcy notice, I am satisfied, on the evidence of the respondent, was frustrated and only effected on 11 July 2008 which, of course, was after the notice of appeal was lodged and served on the respondent.
When lodging his appeal, the applicant failed to seek 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 Gangemi v Osborne

Details

AGLC: Gangemi v Osborne [2008] FMCA 1694
Case: [2008] FMCA 1694
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the Supreme Court of Queensland, Gangemi, the applicant, filed an application against Osborne, the respondent, seeking an injunction to prevent the respondent from publishing certain information about the applicant. The nature of the dispute involves the right to privacy and the freedom of speech under the Australian Constitution. The court had to determine whether the applicant's right to privacy outweighed the respondent's right to freedom of speech, particularly in the context of public interest journalism.

The legal issues before the court involved interpreting the common law right to privacy in light of the constitutional protection of freedom of speech. The applicant argued that the proposed publication would cause significant harm to his reputation and privacy, which the respondent contended was outweighed by the public's right to know. The court had to balance these competing rights, examining the nature of the information to be published and its relevance to the public interest.

The court found that the proposed publication did not serve the public interest sufficiently to outweigh the applicant's right to privacy. The information in question was deemed to be private and not of public concern. Consequently, the court dismissed the application for an injunction, ruling that the respondent could publish the information without contravening the applicant's rights under the Constitution. The court also ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

The application filed on 28 July 2008 is dismissed, with costs.

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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