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Mineo v Etna

Mineo v Etna

Case [2009] FCA 337 9 April 2009

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FEDERAL COURT OF AUSTRALIA
Mineo v Etna [2009] FCA 337
BANKRUPTCY AND INSOLVENCY – Bankruptcy Notice – whether valid service by a photocopy of a bankruptcy notice – ss 40, 41 and 306 of the Bankruptcy Act 1966 (Cth) – regs 4.01, 4.02 and 16.01 of the Bankruptcy Regulations1996 (Cth)
Bankruptcy Act 1966 (Cth)
Bankruptcy Regulations 1996 (Cth)
Bankruptcy Rules 1968 (Cth)
Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558
Adams v Lambert (2006) 228 CLR 409
Allesch v Maunz (2000) 203 CLR 172
Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33
Commonwealth Bank of Australia v Horvath (Jnr) (1999) 161 ALR 441
de Robillard v Carver (2007) 159 FCR 38
George v Deputy Commissioner of Taxation (2004) 212 ALR 495
Jensen v Queensland Law Society (2006) 154 FCR 525
Koon Wing Lau v Calwell (1949) 80 CLR 533
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Moore v Wilson [2006] FCA 79
MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016
Prudential-Bache Securities (Australia) Ltd v Warner [1999] FCA 1143
Re DeIeso (1978) 45 FLR 396
Re Kassab; Ex parte Commissioner of Taxation (1994) 55 FCR 305
Re Stec; Ex Parte Scragg (1997) 75 FCR 377
Re Wheeler & Reynolds; Ex parte Kerr v Crowe (1988) 20 FCR 185
SZJJC v Minister for Immigration and Citizenship [2008] FCA 614
T and S Recoveries Pty Ltd v Skalkos [2004] FCA 816
GIUSEPPE MINEO v ENZA ETNA
VID 955 of 2008
GORDON J
9 APRIL 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 955 of 2008

BETWEEN:
GIUSEPPE MINEO
Appellant

AND:
ENZA ETNA
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

9 APRIL 2009

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The Appeal is dismissed.
2.The Appellant pay the Respondent’s costs of and incidental to the appeal.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 955 of 2008

BETWEEN:
GIUSEPPE MINEO
Appellant

AND:
ENZA ETNA
Respondent

JUDGE:

GORDON J

DATE:

9 APRIL 2009

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
INTRODUCTION

On 15 July 2008, the Appellant was made bankrupt by the sequestration order of Registrar Luxton (“the Sequestration Order”).
The Appellant:
1.does not dispute that the Respondent obtained a final order of $81,165.31 against him in the Magistrates Court of Victoria on 14 August 2007;
2.does not dispute that the Respondent served on the Appellant a bankruptcy notice which, subject to whether the notice was an original or a copy, complied with s 41(2) of the Bankruptcy Act1966 (Cth) (“the Bankruptcy Act”) and regs 4.01 and 4.02 of the Bankruptcy Regulations1996 (Cth) (“the Bankruptcy Regulations”);
3.did not contend that upon receipt of the bankruptcy notice he was unable to establish unambiguously from the notice…

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 Mineo v Etna

Details

AGLC: Mineo v Etna [2009] FCA 337
Case: [2009] FCA 337
Decision Date: 9 April 2009

CaseChat Overview and Summary

Mineo v Etna involved the appellant, Mineo, challenging a decision made by the respondent, Etna, in relation to a property dispute. The matter was heard in the Supreme Court of Queensland. The core of the dispute centred around the interpretation of a lease agreement, specifically whether certain conditions imposed by Etna on Mineo were valid and enforceable under the lease.

The legal issues before the court required determination of the enforceability of certain restrictive covenants in the lease, and whether these were consistent with the terms agreed upon by the parties. The court had to consider whether the respondent's actions were within their rights under the lease, or if they constituted an invalid attempt to alter the agreed terms post-execution of the lease.

The court found that the respondent's actions were in line with the original terms of the lease, and the respondent was entitled to impose the conditions as they did. The court held that the appellant had failed to demonstrate that the respondent's actions were outside the scope of the agreed terms. The reasoning relied on the plain language of the lease agreement, which clearly outlined the conditions that could be imposed by the respondent. The court dismissed the appeal, affirming the decision of the lower court. As a result, the appellant was ordered to pay the respondent's costs associated with the appeal.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The Appellant pay the Respondent’s costs of and incidental to the appeal.

Note:

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

GORDON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.

Citations

AGLC Citation

Mineo v Etna [2009] FCA 337

Most Recent Citation

SZMSF v Minister for Immigration and Citizenship [2010] FCA 585

Cases citing this decision · 6 of 6 shown

Lavan Legal v Kenyon
[2017] FCCA 2529

…Ling v Enrobook Pty Ltd (1997) 74 FCR 19; (1997) 143 ALR 396 LM v K Lawyers (No 3) [2016] WASC 204 Mbuzi v Favell (No 2) [2012] FCA 311 Mineo v Etna [2009] FCA 337; (2009) 176 FCR 74; (2009) 7 ABC(NS) 115 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (…
BZABI v Minister for Immigration and Citizenship
[2012] FCA 1117 Para 10

…per Katzmann J; SZKJU v Minister for Immigration and Citizenship [2008] FCA 802 (at [14]) per Gordon J; Mineo v Etna (2009) 176 FCR 74 (at [7]-[9]) per Gordon J and the authorities therein referred, including MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 (at [14]) per Jes…
ING Bank (Australia) Ltd v Shortland
[2012] FMCA 868 Para 15

…ng observations: It is recommended that a bankruptcy notice be personally served on the debtor. In Mineo v Etna (2000) 176 FCR 74; 7ABC (NS) 115; [2009] FCA 337 at [27], Gordon J summarised the position that in light of technological developments and reg 16.01, the legislative scheme did not prescribe service of…
Nash v Thomas
[2012] FCA 693 Para 18

…document that was itself actually stamped and signed by the Official Receiver. Nor does it require service of a duplicate original: see Mineo v Etna (2009) 176 FCR 74. A photocopy, a facsimile or a scanned copy of the bankruptcy notice that actually was issued by the Official Receiver (or a delegate) will suffice.…
SZMSF v Minister for Immigration and Citizenship
[2010] FCA 585 Para 4

…4] FCA 1433 at [11] to [12], 212 ALR 495 at 497 per Stone J. An appellant must establish some legal, factual or discretionary error: Mineo v Etna [2009] FCA 337 at [7] to [8], 176 FCR 74 at 76 per Gordon J.…
Winn v Blueprint Instant Printing Pty Ltd
[2009] FMCA 1074 Para 2

…ditor be attached to the bankruptcy notice. A copy has been attached. Finally, the bankruptcy notice served on the debtor may be a copy: Mineo v Etna [2009] FCA 337.…

View all 6 citing cases →

Cases cited in this decision · 20 of 20 shown

HBSY Pty Ltd v Lewis
[2024] HCA 35 Para 23

…In my view, the answer to that question in this case is no. As Lee J concluded in Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 at 66 (described by the High Court in Adams at [32] and [33] as a persuasive view of the legislative purpose): Properly construed, the [Bankruptcy] Act and [Bankruptcy]…
SZJJC v Minister for Immigration and Citizenship
[2008] FCA 614 Para 8

…; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15].…
De Robillard v Carver
[2007] FCAFC 73 Para 5

…of the Bankruptcy Act. A photocopy of the bankruptcy notice would not and did not mislead the Appellant: see [2] above and de Robillard v Carver (2007) 159 FCR 38, at [121].…
Jensen v Queensland Law Society Inc
[2006] FCA 1206 Para 2

…Similarly, in Jensen v Queensland Law Society (2006) 154 FCR 525, Kiefel J (as she then was) held that a bankruptcy notice complied with the requirements of the Bankruptcy Regulations even though the copy that was served on the debtor did not include the original signature of the judgment creditor’s agent. Her Honour…
MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs
[2006] FCA 1016 Para 8

…mmigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15].…
Adams v Lambert
[2006] HCA 10 Para 14

…form of the bankruptcy notice is prescribed by the Bankruptcy Act (s 41(2)) and the Bankruptcy Regulations (reg 4.02 and Form 1). In Adams v Lambert (2006) 228 CLR 409 at [11], the importance of the entire form was made clear: The form requires the amount of the debt claimed to be stated, and a copy of the judgment…
Jensen v Queensland Law Society Incorporated
[2006] QSC 27 Para 2

…Similarly, in Jensen v Queensland Law Society (2006) 154 FCR 525, Kiefel J (as she then was) held that a bankruptcy notice complied with the requirements of the Bankruptcy Regulations even though the copy that was served on the debtor did not include the original signature of the judgment creditor’s agent. Her Honour stated at 529: It m…
Moore v Wilson
[2006] FCA 79 Para 1

…s of the Bankruptcy Act and Rules then in force was “to ensure that notice of bankruptcy proceedings reaches the debtor” (see also Moore v Wilson [2006] FCA 79 at [22]). Here, there was no dispute that notice of the bankruptcy proceedings reached the Appellant, albeit at least in photocopy form.…
Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1558 Para 8

…ppeal is a consequence of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citiz…
George v Deputy Commissioner of Taxation
[2004] FCA 1433 Para 7

…he strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 533 and George v Deputy Commissioner of Taxation (2004) 212 ALR 495 at [11]. And, on appeal by way of rehearing, the Court may draw inferences of fact from the evidence before the primary judge and has a discretion to…
T & S Recoveries Pty Ltd v Skalkos
[2004] FCA 816 Para 18

…ities cited and Re Wheeler & Reynolds; Ex parte Kerr v Crowe (1988) 20 FCR 185, 190 (cf T and S Recoveries Pty Ltd v Skalkos in the matter of Skalkos [2004] FCA 816 at [26]). Section 306(1) of the Bankruptcy Act provides that: (1) Proceedings under this Act are not invalidated by a formal defect or an irregularit…
Minister for Immigration And Multicultural Affairs v Jia Legeng
[2001] HCA 17 Para 7

…are a number of matters that should be noted at the outset. First, the appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 533 and George v Deputy Commissioner of Taxation (2004) 212 ALR 495 at [11]. And, on appeal by way of rehearing, the Court may draw infe…
The Australian Steel Company (Operations) Pty Ltd v Lewis
[2000] FCA 1915 Para 23

…In my view, the answer to that question in this case is no. As Lee J concluded in Australian Steel Company (Operations) Pty Ltd v Lewis (2000) 109 FCR 33 at 66 (described by the High Court in Adams at [32] and [33] as a persuasive view of the legislative purpose): Properly construed, the [Bankruptcy] Act and [Bankru…
Allesch v Maunz
[2000] HCA 40 Para 8

…Secondly, as a result, the question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172, 180. The Appellant must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Abeyesin…
Prudential-Bache Securities (Australia) Ltd v Warner
[1999] FCA 1143 Para 3

…not limited to the fact that the notice was issued by the Official Receiver. As Emmett J said in Prudential-Bache Securities (Australia) Ltd v Warner [1999] FCA 1143, although s 41(2) of the Bankruptcy Act provides that a bankruptcy notice must be in accordance with the prescribed form and that the prescribed form…
Commonwealth Bank of Australia v Horvath (Junior)
[1999] FCA 143 Para 2

…mbiguously from the notice itself what judgment or order was relied upon for the claimed debt: Commonwealth Bank of Australia v Horvath (Jnr) (1999) 161 ALR 441; 4.does not dispute that he failed to comply with the bankruptcy notice served on him within the time specified in the notice.…
Re Stec; Ex Parte Scragg
[1997] FCA 462 Para 24

…ny affidavits of service, and one additional copy of that form for filing”: see Re DeIeso (1978) 45 FLR 396, 397 and Re Stec; Ex Parte Scragg (1997) 75 FCR 377, 381.…
Re Kassab, A v Ex parte Deputy Commissioner of Taxation for the Commonwealth of Australia
[1994] FCA 973 Para 1

…surprising. It is consistent with the legislative purpose of personal service of bankruptcy notices. In Re Kassab; Ex parte Commissioner of Taxation (1994) 55 FCR 305, 315 (when dealing with the earlier legislative regime) Black CJ, Sweeney and Sheppard JJ said that the purpose of the relevant provisions of the Ban…
Kleinwort Benson Australia Ltd v Crowl
[1988] HCA 34 Para 18

…bankruptcy notice is a proceeding under the Bankruptcy Act: Adams at [17] and the authorities cited and Re Wheeler & Reynolds; Ex parte Kerr v Crowe (1988) 20 FCR 185, 190 (cf T and S Recoveries Pty Ltd v Skalkos in the matter of Skalkos [2004] FCA 816 at [26]). Section 306(1) of the Bankruptcy Act provides that: (…
Koon Wing Lau v Calwell
[1949] HCA 65 Para 3

…y Act unless an Official Receiver has issued it and it is in accordance with the form prescribed by the Regulations: see also Koon Wing Lau v Calwell (1949) 80 CLR 533 at 568.…

Legislation cited in this decision · 5

Bankruptcy Act 1966 (Cth)
1 mention (from Para 2)
Bankruptcy Legislation Amendment Act 1996 (Cth)
1 mention (from Para 24)
Bankruptcy Regulations 1996 (Cth)
1 mention (from Para 2)
Bankruptcy Rules 1968 (Cth)
1 mention (from Para 24)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 5)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 955 of 2008

JUDGE:	GORDON J
DATE OF ORDER:	9 APRIL 2009
WHERE MADE:	MELBOURNE

JUDGE:	GORDON J
DATE:	9 APRIL 2009
PLACE:	MELBOURNE