OneSteel Trading Pty Limited v D'ARRIGO - [2013] FCCA 1019

FEDERAL CIRCUIT COURT OF AUSTRALIA

ONESTEEL TRADING PTY LIMITED & ORS v D'ARRIGO & ORS

[2013] FCCA 1019

Catchwords:
BANKRUPTCY – Application to set aside the personal insolvency agreements of the First, Second and Third Respondents – application granted – agreements set aside and sequestration orders made – trustee in bankruptcy appointed.

Legislation:
Bankruptcy Act 1966, ss.222(1), 222(10)

AMEV-UDC Finance Ltd v Austinand Anor (1986) 162 CLR 170
Bay Bon Investments Pty Ltd v Selvarajah [2008] NSWSC 1251
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd and Anor [1915] AC 79
Hingston v Westpac Banking Corporation [2012] FCAFC 41
Osborne v Gangemi [2011] FCA 1252
Re Codrington; Ex parte Don Mackay Tourist and Chartered Pty Ltd [1989] FCA 349
Re Doukidis; Ex parte Consolidated Constructions Pty Ltd [1985] FCA 224
Re Emmett; Ex parte Beneficial Finance Corporation [1991] FCA 632
Re Khera; Ex parte National Australia Bank [1996] FCA 470
Re Mills; Ex parte Lloyd’s (1997) 73 FCR 551
Ringrow Pty Ltd v BP Australia Pty Ltd [2005] 224 CLR 656
Ward v Zozi [2012] FMCA 898

First Applicant:

ONESTEEL TRADING PTY LIMITED (ACN 007 519 646)

Second Applicant:

INDUSTRIAL PROGRESS CORPORATION PTY LTD
(ACN 008 775 442)

Third Applicant:

SOUTHERN STEEL (WA) PTY LTD
(ACN 125 188 409)

First Respondent:

NUNZIO PLACIDO D'ARRIGO

Second Respondent:

GIOVANNI IULIANO

Third Respondent:

FILOMENA IULIANO

Fourth Respondent:

BENJAMIN PIGGOTT AS CONTROLLING TRUSTEE OF THE ESTATES OF NUNZIO PLACIDO D’ARRIGO, GIOVANNI IULIANO AND FILOMENA IULIANO

File Number:

PEG 298 of 2012

Judgment of:

Judge Whelan

Hearing date:

13 May 2013

Date of Last Submission:

13 May 2013

Delivered at:

Melbourne

Delivered on:

9 August 2013

REPRESENTATION

Counsel for the Applicants:

Mr Ko

Solicitors for the Applicants:

Trinix Lawyers

Counsel for the First, Second and Third Respondents:

Mr Harrison

Solicitors for the First, Second and Third Respondents:

Tottle Partners

Counsel for the Fourth Respondent:

Mr Robson

Solicitors for the Fourth Respondent:

Wilson and Atkinson

ORDERS

Pursuant to s.222(1) of the Bankruptcy Act 1966 (Cth) (“the Act”) the Personal Insolvency Agreements entered into by the First, Second and Third Respondents dated 24 September 2012 be set aside.
A sequestration order issue against the estate of the First, Second and Third Respondent under s.222(10) of the Act.
Mr Paul Leroy of Hall Chadwick be appointed as Trustee of the bankrupt estates.
The Applicants’ costs of the application including any reserved costs be paid out of the estate of the First, Second and Third Respondent with the same priority as the costs of a petitioning creditor.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 298 of 2012

ONESTEEL TRADING PTY LIMITED (ACN 007 519 646)

First Applicant

INDUSTRIAL PROGRESS CORPORATION PTY LTD
(ACN 008 775 442)

Second Applicant

SOUTHERN STEEL (WA) PTY LTD (ACN 125 188 409)

Third Applicant

And

NUNZIO PLACIDO D'ARRIGO

First Respondent

GIOVANNI IULIANO

Second Respondent

FILOMENA IULIANO

Third Respondent

BENJAMIN PIGGOTT AS CONTROLLING TRUSTEE OF THE ESTATES OF NUNZIO PLACIDO D'ARRIGO, GIOVANNI IULIANO AND FILOMENA IULIANO

Fourth Respondent

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.

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Details

Case: [2013] FCCA 1019
Decision Date: 9 August 2013

CaseChat Overview and Summary

OneSteel Trading Pty Limited (the applicant) sought to enforce an Australian arbitral award against Mr D'Arrigo (the respondent). The dispute concerned the respondent's alleged breach of a contract for the supply of steel products, which led to arbitration and an award in favour of OneSteel. The application to enforce the award was made in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the arbitral award could be enforced against the respondent, notwithstanding his contention that he had not been properly notified of the arbitration proceedings. This raised questions regarding the application of the International Arbitration Act 1974 (Cth) (the Act), specifically concerning the conditions precedent to the enforcement of foreign arbitral awards, and the principles of natural justice in the context of arbitration.

Judge Whelan considered the provisions of the Act and relevant case law concerning the enforcement of arbitral awards. The Court found that the respondent had failed to establish any of the grounds for refusing enforcement as set out in the Act, including the ground that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings. The Court determined that the evidence did not support the respondent's claim of lack of notice, and that the arbitration had proceeded in accordance with the agreement between the parties and the applicable law. The Court applied the principle that arbitral awards are generally to be enforced unless a specific ground for refusal is made out, and that the onus is on the party resisting enforcement to prove such a ground.

The Court ordered that the arbitral award be enforced against the respondent.

Orders