Raschilla v Gulluni - [1987] FCA 95

Re: ANTONIO RASCHILLA
And: FRANK and ADELIA GULLUNI and the Trustee of their estate BARRY TAYLOR
No. 42 of 1986
Bankruptcy
(1987) 14 FCR 57

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA
French J.

CATCHWORDS

Bankruptcy - application to avoid, set aside or terminate composition - application for sequestration order - applicant seeking payment for wages - interim creditors' meeting - composition excluding applicant - appointment of interstate trustee not justified - no composition payments yet made - delay making application under s.239 - no prejudice - regard to circumstances of composition - employment monies a statutory priority - composition unreasonable.

Bankruptcy Act 1966 ss.242, 222, 239

Industrial Training Act 1975 (WA)

Re: Forbes (1974) 24 FLR 87

Re: Thompson; Ex parte Smith (No. 1) (1975) 38 FLR 153

Re: Doukidis; Ex parte Consolidated Constructions Pty Ltd (unreported Toohey J. 26 June 1985)

Re:Jacobs; Ex parte O'Connor 53 ALR 93

Re: Boyley Ex parte The Deputy Commissioner of Taxation (1952) 16 ABC 33.

HEARING

PERTH

#DATE 5:3:1987

Counsel for the Applicant: Mrs J. Withers instructed by Messrs. Jackson McDonald.

Counsel for the Respondents: Mr P. Richards instructed by Messrs. Corser & Corser

Counsel for the Trustee: Miss M.A. Leclezio instructed by Messrs. Hammond Fitzgerald & King

ORDER

Time is extended to enable the applicant to apply to set aside the compositions under s.239 of the Bankruptcy Act.

Leave is granted to amend the application to include a claim for an order setting aside the compositions under s.239 of the Bankruptcy Act.

The composition entered into by Frank Gulluni on 14 April 1986 be set aside.

The composition entered into by Adelia Gulluni on 14 April 1986 be set aside.

Sequestration order against the estate of Frank Gulluni.

Sequestration order against the estate of Adelia Gulluni.

Adjourned to 2.15 pm on 17 March 1987 for submissions as to consequential orders and costs.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

JUDGE1

This is an application to avoid, set aside or terminate a composition entered into by the creditors of the respondents on 14 April 1986.

In lieu of the composition the applicant seeks sequestration orders against the respondents.
The applicant was employed by the respondents as an apprentice printer from 20 February 1982 to the end of October 1983. His employment was pursuant to an apprenticeship agreement under the Industrial Training Act 1975 (WA).
The agreement, an unsigned copy of which was annexed to the applicant's affidavit, named as his employer "Francesco Gulluni and Adelia Gulluni trading as F. & A. Gulluni, 14 Lindhurst Street, Dianella".
The applicant contended that pursuant to the agreement the respondents were bound to pay him at rates prescribed in the Building Trades Construction Award.
He said they had underpaid him to the extent of $8,173.73. Frank Gulluni in an affidavit filed in these proceedings and sworn on 17 September 1986, disputes the liability. He says that he…

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 Raschilla v Gulluni

Details

AGLC: Raschilla, A. v. Gulluni, F. & Anor [1987] FCA 95 ((1987) 14 FCR 57)
Case: [1987] FCA 95
Decision Date: 05 MARCH 1987

CaseChat Overview and Summary

The decision in Raschilla v Gulluni involves an application by the creditor Raschilla for the sequestration of the bankrupts, Frank and Adelia Gulluni. The primary dispute centres on the validity and reasonableness of compositions that the Gullunis entered into on 14 April 1986, which excluded Raschilla from participating in the composition payments. Raschilla, seeking payment for wages, argues that the composition was unreasonable and should be set aside.

The key legal issues before the court were whether the appointment of an interstate trustee was justified, whether the delay in applying to set aside the composition prejudiced any party, and whether the composition was unreasonable given the statutory priority of employment monies. The court had to determine if the compositions were fair and reasonable and if there were any grounds under section 239 of the Bankruptcy Act to set them aside. Additionally, the court needed to assess whether the circumstances of the composition warranted the imposition of a sequestration order.

The court ruled that the appointment of an interstate trustee was not justified due to the lack of composition payments made and the absence of any prejudice resulting from the delay in making the application. The court found the employment monies to be a statutory priority and held that the composition was unreasonable because it did not consider the statutory priority of employment monies. Consequently, the court set aside the compositions entered into by Frank and Adelia Gulluni on 14 April 1986 and granted a sequestration order against their estates. The matter was adjourned to allow for submissions on consequential orders and costs.

Orders

Orders of the court

Time is extended to enable the applicant to apply to set aside the compositions under s.239 of the Bankruptcy Act.

Leave is granted to amend the application to include a claim for an order setting aside the compositions under s.239 of the Bankruptcy Act.

The composition entered into by Frank Gulluni on 14 April 1986 be set aside.

The composition entered into by Adelia Gulluni on 14 April 1986 be set aside.

Sequestration order against the estate of Frank Gulluni.

Sequestration order against the estate of Adelia Gulluni.

Adjourned to 2.15 pm on 17 March 1987 for submissions as to consequential orders and costs.

Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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