Linke v TT Builders Pty Ltd (No 3)

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FEDERAL COURT OF AUSTRALIA

Linke v TT Builders Pty Ltd (No 3) [2015] FCA 1054

Citation: Linke v TT Builders Pty Ltd (No 3) [2015] FCA 1054
Parties: TOBIN JAMES LINKE v TT BUILDERS PTY LTD (ACN 120 541 424), ANTONIO MAURIZIO TESSITORE and HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
File number: SAD 56 of 2014
Judge: WHITE J
Date of judgment: 10 September 2015
Catchwords: COSTS – enforcement of costs order – application under rr 41.01 and 41.10 of the Federal Court Rules 2011 (Cth) and Enforcement of Judgments Act 1991 (SA) – application for court to investigate respondent’s means of satisfying judgment debt – summons for examination – summons to produce documents
Legislation: Bankruptcy Act 1966 (Cth)
Enforcement of Judgments Act 1991 (SA) s 4
Federal Court of Australia Act 1976 (Cth) s 53
Federal Court Rules 2011 (Cth) rr 40.32, 41.01, 41.10
Cases cited: Director of Public Prosecutions v George [2008] SASC 330; (2008) 102 SASR 246
Martinek v Evans [2004] FCA 1269; (2004) 211 ALR 651
McCormack v National Australia Bank Ltd [1992] FCA 183; (1992) 35 FCR 303
Date of hearing: 10 September 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 41
Counsel for the Applicant: Ms GC Walker
Solicitor for the Applicant: Fenwick Elliott Grace
Counsel for the Other Party: Mr SA Evans
Solicitor for the Other Party: Clarke Hemmerling Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 56 of 2014
BETWEEN:

TOBIN JAMES LINKE
Applicant
AND:

TT BUILDERS PTY LTD (ACN 120 541 424)
First Respondent

ANTONIO MAURIZIO TESSITORE
Second Respondent

HARRIS REAL ESTATE PTY LTD (ACN 140 836 997)
Third Respondent

JUDGE:

WHITE J

DATE OF ORDER:

10 SEPTEMBER 2015

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.Pursuant to rr 41.01 and 41.10 of the Federal Court Rules 2011 and s 4 of the Enforcement of Judgments Act 1991 (SA), there be an investigation by the Court of the means of the First and Second Respondents to satisfy the judgment arising from the Certificate of Taxation issued on 22 May 2015 (the Judgment).

2.A summons be issued to Mr Armando William Tessitore of 42A Burnell Drive, Belair South Australia requiring him to appear before the Court at a date and time to be nominated by the Registrar for examination as to:

(a)any interest that the Second Respondent may have in the property at 42A Burnell Drive, Belair;

(b)any assets of the First and Second Respondents;

and to produce to the Court any documents in his possession, custody or power;

(c)recording or evidencing the assets of Antonio Maurizio Tessitore and TT Builders Pty Ltd;

(d)evidencing the transfer of Certificate of Title Volume 5567 Folio 340, being the land situated at 42A Burnell Drive, Belair, South Australia, from Antonio Tessitore to Armando William Tessitore on or about 28 February 2013, the terms of that transfer and payment of consideration in respect of the transfer.

3.A summons be issued to…

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Details
Case
[2015] FCA 1054
Decision Date

CaseChat Overview and Summary

The case of Linke v TT Builders Pty Ltd (No 3) involved the enforcement of a costs order. The applicant, Linke, sought to enforce a costs order against the respondents, TT Builders Pty Ltd and its director, Antonio Maurizio Tessitore. The application was made under rules 41.01 and 41.10 of the Federal Court Rules 2011 (Cth) and the Enforcement of Judgments Act 1991 (SA). The case concerned an investigation into the respondents' means of satisfying a judgment debt and the issuance of summons to examine and produce certain documents and information.

The primary legal issues addressed by the court involved the enforceability of a costs order and the procedures for investigating a respondent’s financial situation and assets. The court needed to determine whether the respondents had the means to satisfy the judgment debt and whether the summonses to examine and produce documents were appropriate. Additionally, the court had to consider the costs associated with the enforcement proceedings, including the costs borne by the non-party, Mr Armando William Tessitore.

The court found that an investigation into the respondents' means was warranted and ordered an examination of their assets. Summonses were issued to Mr Armando William Tessitore to appear for examination regarding his interest in property and assets of the respondents, as well as to produce relevant documents. Furthermore, the Department of Premier and Cabinet was required to provide a list of motor vehicle and boat registrations in the name of Antonio Maurizio Tessitore. The court also ordered Mr Armando William Tessitore to pay certain costs associated with the hearing. The matter was adjourned for further investigation, and the court retained liberty to apply for further orders.

In conclusion, the court issued orders to investigate the financial status of the respondents, to examine Mr Armando William Tessitore regarding the respondents' assets, and to produce specific documents and information. The court also directed the payment of certain costs and set the matter down for further investigation.

Orders

Orders of the court

1. Pursuant to rr 41.01 and 41.10 of the Federal Court Rules 2011 and s 4 of the Enforcement of Judgments Act 1991 (SA), there be an investigation by the Court of the means of the First and Second Respondents to satisfy the judgment arising from the Certificate of Taxation issued on 22 May 2015 (the Judgment).

2. A summons be issued to Mr Armando William Tessitore of 42A Burnell Drive, Belair South Australia requiring him to appear before the Court at a date and time to be nominated by the Registrar for examination as to:

(a) any interest that the Second Respondent may have in the property at 42A Burnell Drive, Belair;

(b) any assets of the First and Second Respondents;

and to produce to the Court any documents in his possession, custody or power;

(c) recording or evidencing the assets of Antonio Maurizio Tessitore and TT Builders Pty Ltd;

(d) evidencing the transfer of Certificate of Title Volume 5567 Folio 340, being the land situated at 42A Burnell Drive, Belair, South Australia, from Antonio Tessitore to Armando William Tessitore on or about 28 February 2013, the terms of that transfer and payment of consideration in respect of the transfer.

3. A summons be issued to the Department of Premier and Cabinet of 200 Victoria Square, Adelaide requiring it to produce to the Court at a date and time to be nominated by the Registrar, a list of all current and previous motor vehicle and boat registrations in the name of Antonio Maurizio Tessitore, date of birth 21 January 1962, including details of model, make and registration number details.

4. The non-party Mr Armando William Tessitore pay the Applicant’s costs of, and incidental to, today’s hearing, but excluding the costs associated with Mr Linke’s affidavit of 8 September 2015 and excluding the costs of the attendance on 24 July 2015, as to which there is no order as to costs.

5. The matter be adjourned to a date and time to be fixed by the Registrar for the investigation.

6. There be liberty to apply

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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