Genovese v BGC Construction Pty Ltd - [2006] FMCA 919

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GENOVESE v BGC CONSTRUCTION PTY LTD

[2006] FMCA 919

BANKRUPTCY – Application to set aside fifth bankruptcy notice – applicant sought adjournment – arguments not clearly without merit – matter adjourned.

Genovese v BGC Construction Pty Ltd [2005] FCA 215, 215 ALR 440
Genovese v BGC Construction Pty Ltd [2006] FCA 105
Genovese v BGC Constructions Pty Ltd [2004] FMCA 850
Genovese v Homestyle Pty Ltd [2004] FMCA 673

Applicant:

GENOVESE

Respondent:

BGC CONSTRUCTION PTY LTD

File Number:

PEG 121 of 2006

Judgment of:

Smith FM

Hearing date:

26 June 2006

Delivered at:

Perth

Delivered on:

26 June 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the First Respondent:

Mr Macpherson

Solicitors for the Respondent:

Hotchkin Hanly

ORDERS

The applicant must before 17 July 2006 file and serve all additional affidavits upon which he relies.
The applicant must before 17 July 2006 file and serve an amended application listing each separate ground upon which he seeks the setting aside of the bankruptcy notice.
The respondent must before 7 August 2006 file and serve all additional affidavits upon which it relies.
The parties must before 14 August file and serve a list of the deponents to affidavits filed by the other party who are requested for cross-examination.
Any written submission or list of authorities relied upon by a party must be filed and served at least 7 days before the date fixed for hearing.
The parties have liberty to apply to the Court for an appointment for a further directions listing on a date allowing 3 days notice to the other party.
The matter is to be referred to the Perth Co-ordinating Federal Magistrate for the purpose of considering whether the application should be transferred to the Federal Court as requested by the applicant, or, alternatively, for fixing a hearing date on an estimate of 1-2 days.
Costs in relation to the listing on 26 June 2006 are reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 121 of 2006

GENOVESE

Applicant

And

BGC CONSTRUCTION PTY LTD

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The parties to this matter have been engaged in litigation in relation to the respondent's five attempts to serve a valid bankruptcy notice on the applicant. The litigation has become a saga of proceedings in this and other courts.
The respondent’s bankruptcy notices have all sought to rely upon a judgment obtained on 17 October 2003 by consent in the Local Court of Western Australia for $10,000, plus costs to be taxed, as well as costs ordered to be taxed for the benefit of the respondent in relation to two previous listings in that court. However, the respondent's efforts have not succeeded in relation to four bankruptcy notices, and the present application concerns its fifth attempt.
The first bankruptcy notice was issued in March 2004 and was set aside by consent.
The second bankruptcy notice was issued in April 2004 and gave rise to protracted litigation in this court, leading to McInnis FM giving a judgment reported as Genovese v Homestyle Pty Ltd [2004] FMCA 673, delivered on 5 October 2004, in which he upheld the validity of that notice.
However, unknown to his Honour, the respondent had decided not to rely upon the second notice, but upon a third notice issued in September 2004. The failure of the respondent to inform the court of this change of intention, and its pursuit of a costs order in relation to the proceeding on the second notice, led to the third bankruptcy notice being set aside by order of Lander J in March 2005, on appeal from a second judgment of McInnis FM (see Genovese v BGC Constructions Pty Ltd [2004] FMCA 850 (2004) FMCA 850, and Genovese v BGC Construction Pty Ltd [2005] FCA 215, 215 ALR 440).
Lander J’s judgment contains a detailed chronology of the complex background behind both the original Local Court orders and the proceedings in the Federal Courts, and also attempts to understand further litigation commenced by the applicant in the state courts in relation to the Local Court orders.
The fourth bankruptcy notice was issued in June 2005. In its Schedule it did not separate the amounts ordered upon judgment and costs, and attached only an April 2005 certificate of the Local Court as to the judgment recorded on 17 October 2003, but did not attach the costs orders nor the costs assessments. Those omissions gave rise to the applicant again being successful. His application was commenced in this court, but was transferred to the Federal Court. Lee J made first instance orders setting aside the fourth bankruptcy notice on

16 January 2006 (see Genovese v BGC Construction Pty Ltd [2006] FCA 105).
The fifth bankruptcy notice was issued in February 2006, and is the subject of the applicant's present application to this court. The notice differs from the previous bankruptcy notices in several respects, including by new reference to the applicant under an alias, and a new ACN number. The applicant wishes to contend that these reveal invalidating errors.
The notice also has a completely new set of attached documents. These purport to be orders of the Local Court of Western Australia which are certified by the Registrar of a new court, the Magistrates Court of Western Australia, which superseded the Local Court in May 2005. The applicant takes points in relation to the validity of those documents, and their capacity to satisfy the requirements in relation to the prescribed form of bankruptcy notice which were previously identified by Lee J.
Previous judgments have contained confusing references as to whether the respondent’s present name has an “s” at the end of “Construction”. Lander J suggested that the omission of an “s” was a defect in the third bankruptcy notice, in his judgment which was published at 215 ALR 440 (see [29] and [129]-[131]). However, he subsequently issued a corrigendum withdrawing this suggestion.
There are also, it would seem, some issues left over from the previous proceedings in relation to the existence of counter claims, the correctness of the amount of the alleged debt (see paragraph 5 of the judgment of Lee J), and other issues which Mr Genovese wishes to air.
In his affidavit filed at the time of bringing this application, the applicant attached documents relevant to only some of these arguments, and he has today filed a bulky further affidavit seeking to put before the court material which was presented in previous proceedings, and which he wishes to argue are relevant also to the validity of the present notice. I have not had time to examine that material at all.
The respondent has filed an affidavit by the respondent's solicitor, Mr Macpherson, who also appeared today to represent that party. Mr Macpherson's affidavit, inter alia, tenders a selection of documents in support of the respondent's case against the applicant's challenge to the reference to an alias in the bankruptcy notice.
Today’s listing, was the first return date for the application. At its commencement, the applicant sought an adjournment and further directions for the preparation of the matter before his application is called on for hearing. He said that his previous experiences in this court were that his applications are not immediately heard on the first court date, but that directions are given allowing the further preparation of the application and the fixing of a hearing. In relation to the last matter it seems that there were also adjournments before Walters FM decided that the matter should be transferred to the Federal Court.
The adjournment was opposed by the respondent. Mr Macpherson argued that the application was without any merit and that the applicant should not be given further time to present more evidence. He accepted, however, that he could be in a position of embarrassment, if required to enter the witness box to be cross-examined on his affidavit, as is sought by the applicant.
In relation to the contention that the application is obviously without merit, I consider that it would be a brave visiting Federal Magistrate who on a superficial look at the documents at present on this file would form that conclusion. I note that there is involved an investigation of the local legislation concerning the abolition of the Local Court of Western Australia and the powers of its successor to issue certificates in relation to its proceedings, and that neither party has yet filed any document attempting to identify and elucidate that legislation. I am also not satisfied that the other issues which the applicant seeks to ventilate can be seen clearly to be without merit at a preliminary stage.
Given the history of the matter and the applicant's previous successes, and notwithstanding his disorganised style of presenting his arguments to the court, I consider that he should be allowed further opportunity to prepare his case in relation to this fifth bankruptcy notice.
In this respect, I note that the application was filed on 12 May 2006, but that there was substantial delay before the applicant was told the return date for the application. It is unclear from the court's file when the parties were informed of today's listing, but this may have been as recently as 22 June 2006. It is also not clear on the material before me that the parties were informed by the court that the matter would be expected or be able to proceed to final hearing immediately. The respondent has not suggested that there was any correspondence passing between the parties in which that topic was canvassed.
Notwithstanding that there may be some delay before a further hearing can be arranged in this court, I consider that it would be better to incur that delay, rather than proceed with a hearing which is likely to be incomplete or otherwise unsatisfactory to both parties.
I shall give directions to ensure that the applicant completes his tender of evidence, and properly identifies all grounds on which he seeks the setting aside of this notice. The matter should then be referred to the co-ordinator for the Perth list for the fixing of a hearing date.

I estimate that, subject to revision in the light of the further evidence which is filed, more than one day will need to be set aside.
The applicant requested that his application should again be transferred to the Federal Court. The respondent opposed a transfer. On my own present consideration of the material I am not persuaded that the application raises any issue or is of such a nature that of itself justifies a transfer. However, there may be logistic or other local reasons which would support a transfer, and I shall therefore refer this issue to the list co-ordinator. The parties did not seek any further opportunity to make submissions on this issue, and I indicated to them that they would be informed of the outcome by the Court.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 28 June 2006