Lauro v Leopardi - [2019] FCCA 2426

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAURO v LEOPARDI

[2019] FCCA 2426

Catchwords:
BANKRUPTCY – Application for review of estimation made by trustee – debt subject to outcome of District Court proceedings that were not finalised – proof of debt – consideration of section 82(4).

Legislation:

Bankruptcy Act 1966 (Cth), ss.60(2), 77, 82, 82(4), 82(5), 82(6), 84
Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 44
Federal Circuit Court Rules 2001 (Cth), r.13.10

Cases cited:

Damjanovic v Maley (2002) 55 NSWLR 149
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400
Morgan v Hardy (1887) 18 QBD 646
Lauro v Minter Ellison Lawyers [2019] SASC 23
Purcell v Rix No 1 [2002] FMCAfam 65
Pyramid Building Society (in liq) v Terry & Anor (1997) ALR 174
Webster v Lampard (1993) 177 CLR 598

Applicant:

N LAURO

Respondent:

V LEOPARDI (DECEASED)

File Number:

ADG 374 of 2018

Judgment of:

Judge Brown

Hearing date:

28 June 2019

Date of Last Submission:

28 June 2019

Delivered at:

Adelaide

Delivered on:

30 August 2019

REPRESENTATION

Counsel for the Applicant:

Mr Eric Lauro purported to appear for the applicant

Solicitors for the Applicant:

Not Applicable

Counsel for the Respondent:

Mr Ryder

Solicitors for the Respondent:

O’Loughlins Lawyers

Counsel for the Trustee:

Mr Elson

Solicitors for the Trustee:

Fisher Jeffries

ORDERS

(1) Mrs Anna Leopardi be substituted as the first respondent for the late Vincenzo Leopardi.
(2)    The applicant file any amended application and evidence in support of his claim on or before 25 October 2019, such evidence to address the following matters:
a.(a)     any specific errors alleged to have been committed by Mr Scott in his adjudication of the quantity of the contingent debt and the procedure it is asserted he should have undertaken to do so; or alternatively
b.(b)     the procedure it is asserted that the court should adopt to assess the amount and proof of the debt allegedly owed to the applicant, in respect of the District Court proceedings between the applicant and the late Mr Leopardi;
c.(c)     together with the specific evidence and witnesses, if any, the applicant proposes to rely on to prove such debt.

d.(3)    The respondent file a response and affidavit in support together with any application in a case on or before 15 November 2019.
e.(4)    Further consideration of the matter is adjourned to 22 November 2019 at 9.30am for directions only.
f.(5)    Costs reserved.

(1) FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Adelaide

ADG 374 of 2018

N Lauro

Applicant

And

V Leopardi (deceased)

Respondent

REASONS FOR JUDGMENT

a.1. In late 2003, Natalie Lauro (Mr Lauro Senior) and the late Vincenzo Leopardi entered into a contract in which Mr Leopardi agreed to build a house for Mr Lauro Senior at a property located at Stradbroke Road, Rostrevor.
b.2. The price contracted for the construction of the house was $450,000.00 or thereabouts. Mr Lauro Senior paid Mr Leopardi the sum of around $240,000, on account of…

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.

Continue reading Lauro v Leopardi

Details

AGLC: Lauro v Leopardi [2019] FCCA 2426
Case: [2019] FCCA 2426
Decision Date: 30 August 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Lauro for a review of the estimation of a debt made by a trustee in bankruptcy. The debt in question was subject to the outcome of District Court proceedings that had not yet been finalised. Mrs Anna Leopardi was substituted as the first respondent for the late Vincenzo Leopardi.

The primary legal issue before the court was whether the trustee's estimation of the contingent debt was appropriate, particularly given that the underlying debt was still being litigated. The court was required to consider the provisions of section 82(4) of the *Bankruptcy Act 1966* (Cth) in determining how to deal with a debt that was contingent and unliquidated.

Judge Brown directed the applicant to file an amended application and supporting evidence addressing specific errors alleged to have been committed by the trustee in adjudicating the quantity of the contingent debt, or alternatively, outlining the procedure the court should adopt to assess the amount and proof of the debt. The applicant was also required to specify the evidence and witnesses they proposed to rely on. The respondent was to file a response and affidavit in support, with further consideration adjourned for directions. Costs were reserved.

Orders

Orders of the court

1) Mrs Anna Leopardi be substituted as the first respondent for the late Vincenzo Leopardi.

(2) The applicant file any amended application and evidence in support of his claim on or before 25 October 2019, such evidence to address the following matters:

a. (a) any specific errors alleged to have been committed by Mr Scott in his adjudication of the quantity of the contingent debt and the procedure it is asserted he should have undertaken to do so; or alternatively

b. (b) the procedure it is asserted that the court should adopt to assess the amount and proof of the debt allegedly owed to the applicant, in respect of the District Court proceedings between the applicant and the late Mr Leopardi;

c. (c) together with the specific evidence and witnesses, if any, the applicant proposes to rely on to prove such debt.

d. (3) The respondent file a response and affidavit in support together with any application in a case on or before 15 November 2019.

e. (4) Further consideration of the matter is adjourned to 22 November 2019 at 9.30am for directions only.

f. (5) Costs reserved.

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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