Genovese v BGC Construction Pty Ltd

FEDERAL COURT OF AUSTRALIA

Genovese v BGC Construction Pty Ltd
[2006] FCA 105

BANKRUPTCY – bankruptcy notice – application for notice to be set aside – failure by creditor to attach to notice a copy of judgment or order – notice set aside.

COSTS - costs to follow the event.

Bankruptcy Act 1966 (Cth), ss 40(1), 40(1)(g), 41(2)

Bankruptcy Regulations 1966 (Cth),  Reg 4.02(1), (2)
Local Court Rules 1961 (WA), O 23 r 6(2)

Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441
Genovese v BGC Construction Pty Ltd (2005) 215 ALR 440
Genovese v Homestyle Pty Ltd [2004] FMCA 673
Stec v Orfanos [1999] FCA 457
The Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33

HERCOLE PIETRO GENOVESE v BGC CONSTRUCTION PTY LTD
(ACN 008 783 248)

WAD 292 of 2005

LEE J
16 FEBRUARY 2006
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 292 OF 2005

BETWEEN:	HERCOLE PIETRO GENOVESE APPLICANT
AND:	BGC CONSTRUCTION PTY LTD (ACN 008 783 248) RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	16 FEBRUARY 2006
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The Bankruptcy Notice 190 of 2005 be set aside.

2.        The respondent pay the applicant’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 292 OF 2005

BETWEEN:	HERCOLE PIETRO GENOVESE APPLICANT
AND:	BGC CONSTRUCTION PTY LTD (ACN 008 783 248) RESPONDENT

JUDGE:	LEE J
DATE:	16 FEBRUARY 2006
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application to set aside Bankruptcy Notice 190 of 2005 (“the Notice”) issued to the applicant (“Genovese”) under the Bankruptcy Act 1966 (Cth) (“the Act”) by the Official Receiver for the Bankruptcy District of Western Australia on 13 June 2005 at the request of the respondent (“BGC”).

2. The Notice is the fourth such notice to be issued to Genovese at BGC’s request based on a judgment obtained by BGC against Genovese in the Local Court of Western Australia on 17 October 2003.  Judgment was entered by consent for a sum of $10,000 and costs to be taxed.  Those costs were taxed and certified on 23 December 2003 in a sum of $11,432.94.

3. Prior to 17 October 2003 other orders for costs had been made in the proceeding in BGC’s favour namely, on 28 February 2003, 15 April 2003 and 9 June 2003.  On 22 May 2003 costs were taxed pursuant to the orders made on 28 February and 15 April 2003 and certified by the Taxing Officer in a sum of $2,010.42.  That sum was duly paid by Genovese.  In respect of the order for costs made on 9 June 2003 taxed costs were certified on 29 October 2003 in a sum of $4,979.33. 

4. The first bankruptcy notice, issued on 12 March 2004, was set aside by consent.  The second and third bankruptcy notices were issued on 21 April 2004 and 8 September 2004…