Osborne v Gangemi (No 2) - [2011] FCA 1278

FEDERAL COURT OF AUSTRALIA
Osborne v Gangemi (No 2) [2011] FCA 1278

Citation: Osborne v Gangemi (No 2) [2011] FCA 1278

Parties: RICHARD OSBORNE and KOUROSH JAFARI v ANTONIO GANGEMI, STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR) and JOHN ADAMS (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR

File number: VID 742 of 2009

Judge: BROMBERG J

Date of judgment: 4 November 2011

Legislation: Bankruptcy Act 1966 (Cth) ss 30, 156A(3)(a)
Federal Court of Australia Act 1976 (Cth) s 21

Cases cited: Osborne v Gangemi [2011] FCA 1252
Cavanagh v The Bank of New Zealand (1990) 22 FCR 124

Date of hearing: 4 November 2011

Place: Melbourne

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 5

Counsel for the Second Applicant: Mr M Gronow

Solicitor for the Second Applicant: Christopher Bunnett Solicitor

Counsel for the Third Applicant: Mr M Strang

Solicitor for the Third Applicant: Melbourne Legal Partners

Counsel for the First Respondent: Mr S Minahan

Solicitor for the First Respondent: Abrahams Meese Lawyers

Counsel for the Second and Third Respondents: Mr P Agardy

Solicitor for the Second and Third Respondents: Lewis Holdway Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 742 of 2009

BETWEEN:
RICHARD OSBORNE
Second Applicant

KOUROSH JAFARI
Third Applicant

AND:
ANTONIO GANGEMI
First Respondent

STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR)
Second Respondent

JOHN ADAMS (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR
Third Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

4 NOVEMBER 2011

WHERE MADE:

MELBOURNE

THE COURT DECLARES THAT:
1.Anthony Robert Cant was on 4 November 2011 appointed as the trustee of the estate of Antonio Gangemi.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 742 of 2009

BETWEEN:
RICHARD OSBORNE
Second Applicant

KOUROSH JAFARI
Third Applicant

AND:
ANTONIO GANGEMI
First Respondent

STEPHEN ROBERT DIXON (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR)
Second Respondent

JOHN ADAMS (AS TRUSTEE OF THE PROPERTY OF ANTONIO GANGEMI, THE DEBTOR
Third Respondent

JUDGE:

BROMBERG J

DATE:

4 NOVEMBER 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

These reasons for judgment should be read with my earlier reasons for judgment in these two proceedings published earlier today as Osborne v Gangemi [2011] FCA 1252. This morning I made orders in proceeding VID 742 of 2009 including an order sequestrating the estate of the first respondent in that proceeding, Antonio Gangemi. At the time that order was pronounced it became operative so that Gangemi became a bankrupt with all of the consequences that entails: Cavanagh v The Bank of New Zealand (1990) 22 FCR 124.
Section 156A(3)(a) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) provides that, if a registered trustee has consented to act as a trustee and not revoked such consent, the Bankruptcy Act operates to appoint the registered trustee as…

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: [2011] FCA 1278
Decision Date: 4 November 2011

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Osborne v Gangemi (No 2) [2011] FCA 1278 involved the second applicant, Richard Osborne, and the third applicant, Kourosh Jafari, against the first respondent, Antonio Gangemi, the second respondent, Stephen Robert Dixon (as trustee of the property of Antonio Gangemi, the debtor), and the third respondent, John Adams (as trustee of the property of Antonio Gangemi, the debtor). The dispute centered on the appointment of a trustee for the estate of Antonio Gangemi, who had been declared bankrupt. The matter was heard in the Victoria District Registry of the Federal Court’s General Division.

The primary legal issues addressed by the court were the interpretation and application of sections 30 and 156A(3)(a) of the Bankruptcy Act 1966 (Cth) and section 21 of the Federal Court of Australia Act 1976 (Cth). Specifically, the court had to determine whether the consent of a registered trustee to act as a trustee for a bankrupt’s estate, which was subsequently revoked, could still result in the appointment of that trustee under the Bankruptcy Act. The court also had to consider whether the Federal Court had the power to declare the appointment of a trustee under the Bankruptcy Act.

Justice Bromberg held that the consent of a registered trustee to act as a trustee for a bankrupt's estate, which had been revoked, could not result in the appointment of that trustee. The court found that the revocation of the consent by the registered trustee, Paul Anthony Pattison, effectively negated his consent. As a result, the court ruled that Anthony Robert Cant, who had also consented to act as a trustee for Antonio Gangemi’s estate, should be appointed as the trustee. The court exercised its declaratory power under section 30 of the Bankruptcy Act to declare that Cant had been appointed as the trustee of Gangemi’s estate.

The court's decision was grounded in the statutory provisions of the Bankruptcy Act and the Federal Court of Australia Act. It confirmed the importance of the timing and validity of consents given by registered trustees and clarified the procedure for appointing trustees in bankruptcy matters. The court's declaration was deemed necessary to provide clarity and resolve any uncertainty regarding the trustee's appointment.

Orders