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Magafas v Carantinos

Magafas v Carantinos

Case [2008] FMCA 1654 11 December 2008

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAGAFAS v CARANTINOS

[2008] FMCA 1654

BANKRUPTCY – Creditor’s petition – meaning of last known address – documents served at address given in previous proceedings and on driver’s licence – enquiries made at time of service revealed a connection between debtor and those premises despite non-residential character – solicitors undertakings – whether undertaking given personally or as an agent for the client – whether undertaking not to enforce judgment constitutes other sufficient cause.

Bankruptcy Regulations
Bankruptcy Act 1966, s.52
Bankruptcy Regulations Amendment 1996
Dal Pont GE, Lawyers Professional Responsibility (3^rd ed, Lawbook Co, 2006)

Carantinos v Magafas [2008] NSWCA 304
CSR Limited trading as CSR Construction Materials v Antonio Barillaro [2001] FMCA 23
Skalkos v T S Recoveries Pty Limited [2004] FCAFC 321
Drake v Stanton [1999] FCA 1635
Theodor Silvas (a bankrupt) v Maureen Silvas[1997] FCA 206
Troy & Company v Cameron [2002] FMCA 42
Deputy Commissioner of Taxation v Gadaletto (1999) FCA 923
Gorman v Norton (1887) 8 LR (NSW) L 479
Wade v Licardy (1993) 33 NSWLR 1
Council of the Queensland Law Society Inc v Tunn [2004] QCA 412
Bechara t/as Bechara & Co v Atie & Anor [2005] NSWCA 268

Applicant:

ANTHONY MAGAFAS

Respondent:

PETER CARANTINOS

File number:

SYG 722 of 2008

Judgment of:

Raphael FM

Hearing dates:

24 & 25 November 2008

Date of last submission:

25 November 2008

Delivered at:

Sydney

Delivered on:

11 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr T Alexis SC
Mr S Golledge

Solicitors for the Applicant:

Rockliffs

Counsel for the Respondent:

Mr B Skinner

Solicitors for the Respondent:

Bowles Lawyers

ORDERS

A sequestration order be made against the estate of Peter Carantinos.
The applicant creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court Bankruptcy Rules) and paid from the estate of the respondent debtor in accordance with the Act.

THE COURT NOTES THAT

That the date of the act of bankruptcy is 13 March 2008.
Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 722 of 2008

ANTHONY MAGAFAS

Applicant

And

PETER CARANTINOS

Respondent

REASONS FOR JUDGMENT

Introduction

In this hearing of a creditor’s petition the court is required to consider the meaning of the term “last known address” for the purposes of Bankruptcy Regulation 16.01(1)(c) (the “Regulations”). The court is also required to determine whether an alleged arrangement evidenced in writing between solicitors concerning the enforcement of a judgment constitutes “other sufficient cause” for not making the sequestration order pursuant to s.52(2)(b) of the Bankruptcy Act 1966 (the “Act”).
The creditor and the debtor were partners in a property trading enterprise between April 1995 and 1 May 2006. The partnership did not end happily. There was litigation between the parties in the Supreme Court of New South Wales. The matter was heard by Justice Einstein who published reasons for judgment on 15…

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 Magafas v Carantinos

Details

AGLC: Magafas v Carantinos [2008] FMCA 1654
Case: [2008] FMCA 1654
Decision Date: 11 December 2008

CaseChat Overview and Summary

Magafas v Carantinos was a matter heard in the Federal Magistrates Court of Australia. The applicant, Mr Magafas, sought a sequestration order against the estate of Mr Carantinos. The basis for this application was Mr Carantinos' failure to pay a judgment debt owed to Mr Magafas, which had arisen from a prior legal dispute between the parties. Mr Magafas argued that Mr Carantinos' failure to settle the debt constituted an act of bankruptcy, warranting the imposition of a sequestration order.

The primary legal issue before the court was whether Mr Carantinos' failure to pay the judgment debt constituted an act of bankruptcy under the Bankruptcy Act 1966. The court was required to examine the relevant statutory provisions and determine whether Mr Carantinos' conduct met the criteria for a sequestration order. Specifically, the court had to consider whether the debt was a provable debt and whether Mr Carantinos had failed to comply with a court order to pay that debt within the specified period.

The court found that Mr Carantinos' failure to pay the judgment debt did indeed constitute an act of bankruptcy. The court held that the debt was a provable debt under the Bankruptcy Act and that Mr Carantinos had not complied with the court order to pay the debt within the requisite period. The court noted that the act of bankruptcy occurred on 13 March 2008, when the specified period for payment had lapsed. Given these findings, the court concluded that a sequestration order was warranted. The court ordered that a sequestration order be made against Mr Carantinos' estate and that the applicant's costs be taxed and paid from the estate in accordance with the Federal Magistrates Court Bankruptcy Rules.

Orders

Orders of the court

A sequestration order be made against the estate of Peter Carantinos.

The applicant creditor’s costs (including any reserved costs) be taxed (in accordance with the Federal Magistrates Court Bankruptcy Rules) and paid from the estate of the respondent debtor in accordance with the Act.

THE COURT NOTES THAT

That the date of the act of bankruptcy is 13 March 2008.

Under the Bankruptcy Regulations a copy of this sequestration order be given to the Official Receiver in Sydney within 2 days.

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

Full text does not contain this section.

Citations

AGLC Citation

Magafas v Carantinos [2008] FMCA 1654

Most Recent Citation

Queensland Building Services Authority v Mogg [2012] FMCA 426

Cases citing this decision · 3 of 3 shown

Deputy Commissioner of Taxation v Hakan Atmali; Deputy Commissioner of Taxation v Hasan Atmali
[2013] FCCA 507 Para 13

…A similar argument, as raised by Mr Hakan Atmali, was raised before me in Magafas v Carantinos [2008] FMCA 1654 where the debtor did not reside at the address at which service was effected. But in that case service took place at an address used by the debtor for business purposes and was regularly visited by his mo…
QBE Insurance (Aust) Ltd v Mahaffy (No.2)
[2012] FMCA 977 Para 12

…, who claims to live in Nelson Street, also said that post was being delivered to her not at that address but at Rose Street. In Magafas v Carantinos [2008] FMCA 1654 I considered the matter of what constituted a last known address. After referring to Drake v Stanton [1999] FCA 1635 [2] , a decision of Tamberlin J,…
Queensland Building Services Authority v Mogg
[2012] FMCA 426 Para 4

…This is not a case where Mogg merely complains that as the debtor he had no notice of proceedings; Magafas v Carantinos [2008] FMCA 1654. Rather, Mogg says that the Authority had no basis to believe that the bankruptcy notice was forwarded to his last known address.…

View all 3 citing cases →

Cases cited in this decision · 8 of 8 shown

Carantinos v Magafas
[2008] NSWCA 304 Para 3

…iff creditor, was appealed by the debtor to the New South Wales Court of Appeal. The appeal was dismissed on 14 November 2008; Carantinos v Magafas [2008] NSWCA 304. On the same day as he handed down judgment in the principal proceedings Einstein J handed down judgment in some associated proceedings that had commen…
Bechara v Atie
[2005] NSWCA 268 Para 9

…n the basis that they undertake to pay that solicitor’s outstanding costs from any settlement or verdict; Bechara t/as Bechara & Co v Atie & Anor [2005] NSWCA 268.…
Skalkos v T & S Recoveries Pty Ltd
[2004] FCAFC 321 Para 8

…uptcy notices CSR Limited trading as CSR Construction Materials v Antonio Barillaro [2001] FMCA 23 approved in Skalkos v T S Recoveries Pty Limited [2004] FCAFC 321. The Regulations do not require evidence that the notice be brought to the attention of a debtor although Regulation 16.01(2) does give the debtor an o…
Council of the Queensland Law Society Inc v Tunn
[2004] QCA 412 Para 8

…Similarly, in Council of the Queensland Law Society Inc v Tunn [2004] QCA 412, the subject of the solicitor’s undertaking was a promise to deposit the entire proceeds of a sale of property after settlement and not to dispose or otherwise deal with those settlement proceeds without an order of the court. In breach…
Troy & Company v Cameron
[2002] FMCA 42 Para 10

…-known address was amply open to him on the evidence summarized at [36].” The third case referred to was Troy & Company v Cameron [2002] FMCA 42, a decision of the Chief Federal Magistrate as she then was. Her Honour cited Drake and also Deputy Commissioner of Taxation v Gadaletto (1999) FCA 923 and accepted the…
Drake v Stanton
[1999] FCA 1635 Para 9

…Three cases were cited to me as providing assistance in the definition of the words “his or her last known address”. The first Drake v Stanton [1999] FCA 1635 was a decision of Tamberlin J. In that case an envelope was left at an address known as 396 Grey Street Glen Innes although the bankruptcy notice which it c…
Theodor Silvas (a bankrupt) v Maureen Silvas
[1997] FCA 206 Para 10

…d Hely JJ noted the views of the primary Judge referring with approval to the comments of Tamberlin J in Theodor Silvas (a bankrupt) v Maureen Silvas [1997] FCA 206 that the effect of Regulation 16.01 enables non personal service of a bankruptcy notice to be effected and then to the primary Judge’s view that: “Ev…
[2001] FMCA 23
[2001] FMCA 23 Para 8

…him. The courts have held that Regulation 16.01 applies to bankruptcy notices CSR Limited trading as CSR Construction Materials v Antonio Barillaro [2001] FMCA 23 approved in Skalkos v T S Recoveries Pty Limited [2004] FCAFC 321. The Regulations do not require evidence that the notice be brought to the attention…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
52 2 mentions (from Para 1)