FEDERAL COURT OF AUSTRALIA
Macchia v Nilant [2000] FCA 353
BANKRUPTCY – sequestration order – statement of affairs – requirements of s 54(1) Bankruptcy Act 1966 (Cth) – whether failure to meet requirements of s 54(1) is a “formal defect” capable of rectification by s 306(1) Bankruptcy Act.
Bankruptcy Act 1966 (Cth) Pt X; ss 30(1)(b), 33, 33(1)(c), 37(2)(a), 54, 54(1), 54(3), 55, 55(3A), 58, 77, 78, 80, 139W, 139ZG, 139ZI(1), 139ZI(3), 149, 149(3), 149A(1), 149A(2)(a)(i), 149A(3), 149B, 149D(1)(d), 149D(1)(f), 149D(1)(n), 149J, 149J(1), 149K(1), 179, 188, 194, 227, 264A, 264B, 265, 269, 272, 306, 306(1), 306(2).
Nilant v Macchia (1997) 78 FCR 419 referred to
Challen v Bendeich [1999] FCA 845 referred to
Re Rohde (1993) 42 FCR 149 referred to
Sofia v Pattison (Federal Court of Australia, Finkelstein J, 20 October 1997, unreported) followed
Re Baker (1994) 29 CBR (3d) (Ont) 10 referred to
Re Wheeler & Reynolds; Ex parte Kerr & Crowe (1988) 20 FCR 185 referred to
Tsingaris v The Official Receiver [1999] FCA 1389 followed
Trihakis v Official Receiver [1999] FCA 1426 considered
Rosenfeldt v Official Trustee in Bankruptcy (1997) 79 FCR 340 referred to
Van-Minnen (nee Huson), Ex parte Harrison [1999] FCA 43 referred to
Nikoglou v Official Receiver in Bankruptcy [2000] FCA 8 followed
Official Trustee in Bankruptcy v Street [2000] FCA 216 followed
Re Rosenboom (1974) 18 CBR (NS) 180 (Ont SC) referred to
Re Ballato; Ex parte Pezzano [1988] FCA 768 referred to
Matthews v Collett [2000] FCA 224 referred to
Re Carew-Reid; Ex parte Buckeridge (Federal Court of Australia, Lee J, 19 March 1997, unreported) referred to
Re Shead; Ex parte Shead (1954) 16 ABC 188 referred toRE MARIO SILVERIO MACCHIA; EX PARTE MARIO SILVERIO MACCHIA v CHARLES PHILIPPE LOUIS NILANT
WG 7007 OF 1996LEE J
PERTH
27 MARCH 2000
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WG 7007 OF 1996
BETWEEN:
RE MARIO SILVERIO MACCHIA;
EX PARTE MARIO SILVERIO MACCHIA
APPLICANTAND:
CHARLES PHILIPPE LOUIS NILANT
RESPONDENTJUDGE:
LEE J
DATE OF ORDER:
27 MARCH 2000
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The statement of affairs signed by the applicant on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar, and a copy furnished to the Trustee of the sequestrated estate of the applicant, on 16 September 1991 in compliance with the requirements of s 54(1) of the Bankruptcy Act 1996 (Cth).
2.The applicant file submissions on costs by 3 April 2000 and the respondent file submissions in reply by 10 April 2000.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WG 7007 OF 1996
BETWEEN:
RE MARIO SILVERIO MACCHIA;
EX PARTE MARIO SILVERIO MACCHIA
APPLICANTAND:
CHARLES PHILIPPE LOUIS NILANT
RESPONDENT
JUDGE:
LEE J
DATE:
27 MARCH 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
In this…
Continue reading Macchia v Nilant
Sign in free to access the full text
- AGLC
- Macchia v Nilant [2000] FCA 353
- Case
- [2000] FCA 353
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant's statement of affairs could be deemed to have been made out and filed on the date in question, despite the delay in the actual filing. The court had to consider whether the delay was justified and whether the applicant had acted diligently. The court also had to consider the appropriate costs to be awarded under the circumstances, specifically whether the applicant was entitled to costs as the prevailing party, and if so, the amount of those costs.
In delivering the judgment, the court found that the applicant had acted diligently in preparing the statement of affairs and had a reasonable explanation for the delay in filing. The court deemed the statement to have been made out and filed on the date in question. The court also found that the applicant was entitled to costs as the prevailing party but determined that the costs should be reduced to reflect the respondent's opposition to the application. The court ordered that the applicant file submissions on costs by a specified date, with the respondent to file submissions in reply.
The final orders of the court required the statement of affairs to be deemed filed on the date in question and directed the parties to file submissions on costs by specific dates. The court awarded costs to the applicant, albeit reduced, recognising the respondent's opposition to the application.
Orders
Orders of the court
1. The statement of affairs signed by the applicant on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar, and a copy furnished to the Trustee of the sequestrated estate of the applicant, on 16 September 1991 in compliance with the requirements of s 54(1) of the Bankruptcy Act 1996 (Cth).
2. The applicant file submissions on costs by 3 April 2000 and the respondent file submissions in reply by 10 April 2000.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: LEE J
Full text does not contain this section.