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
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- Case
- [2013] FCCA 1019
- Decision Date
CaseChat Overview and Summary
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
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