Genovese v BGC Construction Pty Ltd

FEDERAL COURT OF AUSTRALIA

Genovese v BGC Constructions Pty Ltd [2005] FCA 215

BANKRUPTCY – bankruptcy notices – abuse of process – whether issue of multiple bankruptcy notices abuse of process – election to proceed on third notice – second notice issued by respondent creditor subject of application by appellant debtor to set aside – judgment on application reserved – respondent creditor informed appellant debtor it was not proceeding with second notice – respondent creditor failed to inform Federal Magistrates Court of election – judgment delivered in respondent creditor’s favour – costs order in favour of respondent creditor – respondent creditor subsequently began enforcing costs order – whether conduct inconsistent with election.

Bankruptcy Act 1966 (Cth)

Abignano & Anor v Wenkart [1998] FCA 1468 followed
Re a Debtor; Ex parte the Debtor v National Westminster Bank Plc [1983] 3 All ER 545 cited
Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 cited
Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 applied
In re Fredericke and Whitworth; Ex parte Hibbard [1927] 1 Ch 253 cited
Re Hansen; Ex parte Hansen (1985) 4 FCR 590 cited
In re a Judgment Debtor [1908] 2 KB 474 cited

HERCOLE PIETRO GENOVESE v BGC CONSTRUCTIONS PTY LTD

WAD 272 of 2004

LANDER J
11 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD272 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HERCOLE PIETRO GENOVESE APPELLANT
AND:	BGC CONSTRUCTIONS PTY LTD RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	11 MARCH 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.        Bankruptcy Notice 247 of 2004 is set aside.

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	WAD272 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	HERCOLE PIETRO GENOVESE APPELLANT
AND:	BGC CONSTRUCTIONS PTY LTD RESPONDENT

JUDGE:	LANDER J
DATE:	11 MARCH 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from a decision of McInnis FM, dismissing the appellant’s application (the second application) to set aside a bankruptcy notice (number 247 of 2004) (the third notice) issued on 8 September 2004.

   HISTORY OF PROCEEDINGS BETWEEN THE PARTIES

   Proceedings in the Western Australian Magistrates Court

2. The respondent was incorporated as Homestyle Pty Ltd.  It changed its name to BGC Constructions Pty Ltd on 9 July 2003.

3. The respondent is a registered builder under the Builders’ Registration Act 1939 (WA). The appellant was a bricklayer who subcontracted to the respondent in respect of a property to be erected at Lot 742 Burnside Terrace, Canning Vale for Mr and Mrs Van den Hoff.

4. The respondent brought proceedings against the appellant in the Local Court of Western Australia and on 17 October 2003, being the second day of the trial, Boothman SM entered judgment for the respondent, with the consent of the respondent, in the sum of $10,000…