Lo Pilato v Giannasca
[2014] FCA 1108
•10 October 2014
FEDERAL COURT OF AUSTRALIA
Lo Pilato v Giannasca; In the Matter of Giannasca [2014] FCA 1108
Citation: Lo Pilato v Giannasca; In the Matter of Giannasca [2014] FCA 1108 Parties: IN THE MATTER OF THE BANKRUPT ESTATE OF ANTHONY ROBERT GIANNASCA; FRANK LO PILATO IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY v ANTHONY ROBERT GIANNASCA File number: ACD 80 of 2014 Judge: FOSTER J Date of judgment: 10 October 2014 Legislation: Federal Court Rules 2011 (Cth), r 10.12(1) Date of hearing: 10 October 2014 Place: Canberra Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Solicitor for the Applicant: Ms E Webb of Trinity Law Solicitor for the Respondent: There was no appearance either by or on behalf of the respondent
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 80 of 2014
IN THE MATTER OF THE BANKRUPT ESTATE OF ANTHONY ROBERT GIANNASCA
BETWEEN: FRANK LO PILATO IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY
ApplicantAND: ANTHONY ROBERT GIANNASCA
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
10 OCTOBER 2014
WHERE MADE:
CANBERRA
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to file in Court the affidavit of Frank Lo Pilato sworn on 10 October 2014.
2.The Interlocutory Application filed by the applicant (Frank Lo Pilato) on 26 August 2014 be dismissed upon the basis that, pursuant to r 10.12(1) of the Federal Court Rules 2011, service has been validly effected upon the respondent.
3.There be no orders as to the costs of the said Interlocutory Application.
4.By 30 October 2014, the respondent file and serve all affidavits upon which he intends to rely at the final hearing in answer to the applicant’s affidavit evidence.
5.By 5 November 2014, the applicant file any affidavits in reply.
6.Liberty be granted to both parties to apply on three (3) days’ notice or on such shorter notice as a Judge might allow.
7.The proceeding be listed for hearing at 9.15 am on 7 November 2014 before the A.C.T. List Judge.
8.The applicant use his best endeavours to bring to the notice of the respondent the terms of these Orders and to do so as soon as practicable.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 80 of 2014
IN THE MATTER OF THE BANKRUPT ESTATE OF ANTHONY ROBERT GIANNASCA
BETWEEN: FRANK LO PILATO IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY
ApplicantAND: ANTHONY ROBERT GIANNASCA
Respondent
JUDGE:
FOSTER J
DATE:
10 OCTOBER 2014
PLACE:
CANBERRA
REASONS FOR JUDGMENT
There has been returned before the Court this morning an Interlocutory Application filed on 26 August 2014 on behalf of the applicant in which he seeks orders for the substituted service of the Originating Application and of sealed copies of the affidavits filed in support of that Application.
On 15 September 2014, after the Interlocutory Application was filed, the applicant, who is the trustee in bankruptcy of Anthony Robert Giannasca, met with Mr Giannasca and his father at the offices of RSM Bird Cameron in Canberra.
The applicant has sworn an affidavit this morning in which he sets out what occurred at that meeting. I grant leave to the applicant to file that affidavit in Court and to rely upon its contents for the purposes of this morning’s listing.
In paragraphs 7 and 8 of that affidavit, the applicant said:
7.During the course of the meeting the Respondent and I said to each other, amongst other things, words to the effect of:
Me: “Here’s a copy of the letter we sent to you on 15 August. It’s got the Statement of Affairs form attached. It sets out your rights and responsibilities as an undischarged bankrupt.” I slid a copy of the letter to the Respondent dated 15 August 2014 across the table to the Respondent. I recognised the document from the file as a letter to the Respondent enclosing the Statement of Affairs.
The Respondent: “I’m not taking that. I can’t read.”
Me: “Anthony, as the trustee, I’ve commenced legal action to recover your property located in Macgregor. The hearing date is on 10 October 2014 at 9.15 in the morning, at the Federal Court of Australia in Canberra.”
The Respondent: “You had better stop any action to sell my house or else.”
Me: “Anthony, I’ve tried to get in touch with you by sms and delivering documents to the Macgregor residence.”
The Respondent: “I haven’t got anything.”
Me: “Here, these are the Court documents. These are your copies. It’s an Originating Application, an Interlocutory Application, and some affidavits in support by Sandra Andrews, Daniel McCormack, Eileen Webb, Minsoo Tyrrel, Jeanette Guglielmin, Mitch and me.” I slid the court documents across the table so they were in front of the Respondent.
The Respondent: “I’m not taking them. You make this go away or else. I can’t read them anyway.”
8.At the conclusion of the meeting, when the Respondent and his father were leaving I observed that they left the letter and court documents on the table. I picked up the letter and the court documents that I had placed in front of the Respondent earlier in the meeting from the table, held out the bundle of documents out to the Respondent and said to the Respondent words to the effect, “Here, take these with you.” The Respondent said to me words to the effect, “I’m not taking them.” The Respondent did not take the bundle of documents from me. The Respondent and his father left the meeting. Annexed and marked “FL-2” is a true copy of the documents I placed in front of the Respondent, namely:
8.1The letter to the Respondent dated 15 August 2014 (minus the enclosures);
8.2Sealed Originating Application filed 26 August 2014;
8.3Sealed Interlocutory Application filed 26 August 2014;
8.4Sealed Affidavit off Sandra Andrews filed 27 August 2014;
8.5Sealed Affidavit of Daniel McCormack filed 27 August 2014;
8.6Sealed Affidavit of Eileen Webb filed 26 August 2014;
8.7Sealed Affidavit by me (minus the annexures) filed 26 August 2014;
8.8Sealed Affidavit of Mitchell Herrett filed 26 August 2014;
8.9Sealed Affidavit of Minsoo Tyrrel (minus the annexures) filed 26 August 2014;
8.10Sealed Affidavit of Jeanette Guglielmin filed 26 August 2014.
In my judgment, the applicant has effected valid service upon Anthony Robert Giannasca of the documents listed in paragraph 8 of the applicant’s affidavit in accordance with r 10.12(1) of the Federal Court Rules 2011, which provides that service of a document which is required to be served personally will be effected if the person serving the document:
(a) puts it down in the presence of the individual to be served; and
(b) tells the individual what the document is.
In light of my decision that service of the Originating Application upon the respondent has been validly effected, it is no longer necessary for the applicant to press for orders for substituted service.
Accordingly, I dismiss the Interlocutory Application filed on 26 August 2014 upon the basis that Mr Giannasca was validly served on 15 September 2014 with the Originating Application and supporting affidavits filed in this proceeding. There will be no order as to the costs of that Interlocutory Application.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 15 October 2014
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