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…
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- AGLC
- Gangemi v Osborne [2008] FMCA 1694
- Case
- [2008] FMCA 1694
- Decision Date
CaseChat Overview and Summary
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
1.
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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