Genovese v Homestyle Pty Ltd - [2004] FMCA 673

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GENOVESE v HOMESTYLE PTY LTD

[2004] FMCA 673

BANKRUPTCY – Application to set aside Bankruptcy Notice – whether cross demand exceeded jurisdiction of local Magistrates Court – change of name of creditor prior to judgment – whether creditor also to rely on judgment for purpose of bankruptcy notice – absence of ACN number – relevance.

Bankruptcy Act 1966, s.40(1)(g), 40(1)(3)(a), 40(3)(d), 41(2)
Local Court Act 1904, s.34(2)
Corporations Act 2001, s.219(3)

Re GEB (1983) 2 KB 340 (CA)
Re Bankruptcy Notice (1934) CH 431
Guss v Johnstone (2000) 74 ALJR 884
Westbrook v National Australia Bank [1999] FCA 892
Smart v Esanda Finance Corp Ltd [2000] FCA 235
Lau v Accord Pacific Properties [2003] FCA 795
Re Gerard Graeme Crisafulli; Ex parte National Commercial Banking Corporation Limited (1985) 11 FCR 272
James v Federal Commissioner of Taxation (1955) 93 CLR 631
Yu v Farrow Mortgage Services Pty Ltd (in liquidation) (1995) 60 FCR 300
Kyriackou v Shield Mercantile Pty Ltd (2004) 207 ALR 393

Applicant:

HERCOLE PIETRO GENOVESE

Respondent:

HOMESTYLE PTY LTD

(ACN 008 783 248)

File No:

WZ 57 of 2004

Delivered on:

5 October 2004

Delivered at:

Melbourne (by video link to Perth)

Hearing Date:

28 July 2004

Date of Last Submission:

6 August 2004

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr A Buchan

Solicitors for the Respondent:

Hotchkin Hanly

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

WZ 57 of 2004

HERCOLE PIETRO GENOVESE

Applicant

and

HOMESTYLE PTY LTD (ACN 008 783 248)

Respondent

REASONS FOR JUDGMENT

In this matter Hercole Pietro Genovese (the applicant) seeks to set aside a bankruptcy notice number 91 of 2004 (the bankruptcy notice) issued by Homestyle Pty Ltd (the respondent) which has been served upon the applicant on 28 April 2004.
The original application to set aside the bankruptcy notice was filed on 18 May 2004 and supported by an affidavit of the applicant sworn the same day. In his affidavit the applicant appears to rely upon two grounds seeking to set aside the bankruptcy notice as follows:
i)the applicant has a cross-demand against the respondent exceeding the amount claimed in the bankruptcy notice as referred to in section 40(1)(g) of the Bankruptcy Act 1966 (the Act); and
ii)the bankruptcy notice is a nullity and invalid on the basis that the person who issued the bankruptcy notice is not a legal entity (or agent thereof) entitled to enter and enforce the judgment.
Specifically, reliance was placed upon the respondent describing itself as "Homestyle Pty Ltd" without the use of its Australian Company Number (the ACN) and that Homestyle Pty Ltd, in any event, had ceased to exist as at 8 July 2003 having changed its name before the relevant judgment was entered on 17 October 2003. It is not disputed that the Respondent changed its name from “Homestyle Pty Ltd” to “BGC Constructions Pty Ltd” on 9 July 2003.
The applicant sought to rely upon an amended application…

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.

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Details

Case: [2004] FMCA 673
Decision Date: 5 October 2004

CaseChat Overview and Summary

Hercole Pietro Genovese sought to set aside a bankruptcy notice issued by Homestyle Pty Ltd, which had been served on him on 28 April 2004. The applicant relied on two grounds to argue for the setting aside of the bankruptcy notice: firstly, he had a cross-demand against the respondent exceeding the amount claimed in the bankruptcy notice; and secondly, the bankruptcy notice was a nullity as the respondent, when issuing the notice, was not a legal entity entitled to enter and enforce the judgment due to its failure to include its Australian Company Number (ACN) and its use of a name it had ceased to use before the relevant judgment was entered. The respondent argued that the applicant's cross-demand was not sufficient to set aside the bankruptcy notice and that the notice's validity was not affected by the absence of the ACN or the use of the former company name.

The court found that the applicant had not demonstrated a genuine cross-demand that could set aside the bankruptcy notice, as the evidence provided was insufficient to establish a prima facie case. Additionally, the court held that the absence of the ACN and the use of the former company name in the bankruptcy notice did not render it invalid, as the notice still provided the necessary information to identify the creditor and the debtor had not been misled. The application to set aside the bankruptcy notice was dismissed with costs.

Orders