Lentini, D.A. v CSR Ltd trading as the Readymix Group

[1993] FCA 402

-2 \493

JUDGMENT No. ...& ........ l ........ ....

IN THE FEDERAL COURT OF AUSTRALIA	)
GENERAL DIVISION
\ No. ACT P77 of 1993
BANKRUPTCY DISTRICT OF THE	)
1
AUSTRALIAN CAPITAL TERRITORY	1

Re:  DOMINIC ANTHONY LENTINI and
ROSS JOSEPH LENTINI

Debtors

Ex parte:  CSR LIMITED trading as
THE READYMIX GROUP

Petitioning Creditor

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	31 May 1993
WHERE MADE	Canberra
THE COURT ORDERS THAT:

1.    The petitlon presented on 19 March 1993, in so far as it seeks a sequestration order against Ross Joseph Lentini, is dismissed.

in rule 124 of the Bankruptcy Rules.

2.   The petitioning creditor pay the costs of Ross Joseph Lentini of and incidental to the petition.

Note:	Settlement and entry of orders is dealt with
-

TN THE FEDERAL COURT OF AUSTRALIA	)
1
GENERAL DIVISION	)
1 No. ACT P77 of 1993
BANKRUPTCY DISTRICT OF THE	)
AUSTRALIAN CAPITAL TERRITORY	1

Re:  DOMINIC ANTHONY LENTINI and
ROSS JOSEPH LENTINI

Debtors

EX parte:  CSR LIMITED trading as
THE READYMIX GROUP

Petitioning Creditor

M: Neaves J.

31 May 1993

EX TEMPORE JUDGMENT

By a creditor's petition presented on 19 March 1993, CSR Limited trading as The Readymix Group sought sequestration orders against the estates of Dominic Anthony Lentini and Ross Joseph Lentini. The petition against Dominic Anthony Lentini is not being proceeded with at this stage.

in the petition itself and in the material presented in There is a substantial number of deficiencies both

support of it. Whether those deficiencies are such that they

may be overlooked by applying s.306(1) of the Bankruptcy Act 1966 (Cth) I need not now determine, for on the evidence before me I am not satisfied that the bankruptcy notlce on

which the petition was founded was in fact served upon Ross
Joseph Lentini.

Although an affidavit was sworn by Martin Richard Flood, a process server, on 23 November 1992 stating that he had served Ross Joseph Lentini wlth a bankruptcy notice on 16 November 1992, when M E Flood gave oral evidence on the hearing of the petition he was unable to stand by that affidavit and, indeed, expressed himself in very positive terms that he had never served Ross Joseph Lentini with any documents prior to his attempt to serve the petition on him at a much later date. I should add that the evidence of service of the bankruptcy petition fails to satisfy me that the petition was properly served on Ross Joseph Lentini.

As I am not satisfied that the bankruptcy notice was served, I cannot be satisfied that the act of bankruptcy specified in the petition, even if the date of its alleged commission is corrected, was committed by Ross Joseph Lentini. In those circumstances, the petition in so far as it seeks a sequestration order against Ross Joseph Lentini must be dismissed, with costs.

I certify that this and the

preceding page are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Nea p.

Dated:  31 May 1993

Counsel for the Petitioning Creditor : Mr R.J. Arthur

Solicitors for the Petitioning Creditor : Gallens Crowley &

Chamberlain

Counsel for the debtor	: Mr R.J. Thomas
Solicitors for the debtor	: pappas, j.
Date of hearing	: 31 May 1993
Date of judgment	: 31 May 1993