Re Lentini; Ex parte Lentini v CSR Ltd - [1991] FCA 295

Re: ROSS JOSEPH LENTINI and DOMINIC ANTHONY LENTINI
Ex parte: ROSS JOSEPH LENTINI and DOMINIC ANTHONY LENTINI
And: CSR LIMITED trading as THE READYMIX GROUP
No. ACT B24 of 1991
FED No. 295
Bankruptcy
29 FCR 363

COURT

IN THE FEDERAL COURT OF AUSTRALIA

BANKRUPTCY DISTRICT OF THE AUSTRALIAN CAPITAL TERRITORY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Bankruptcy - bankruptcy notice - application to extend time for compliance until determination of pending application for stay of further proceedings on judgment on which bankruptcy notice based or, alternatively, pending determination of appeal against such judgment - Whether pending proceedings are proceedings to set aside judgment - Application also seeking order setting aside bankruptcy notice - No grounds stated in application - Affidavit in support failing to state grounds or facts supporting application - Discretion to adjourn application pending determination of appeal and grant extension of time for compliance with requirements of bankruptcy notice.

Bankruptcy Act 1966 (Cth), s.41(6A)

Bankruptcy Rules, rules 102, 103

HEARING

CANBERRA

#DATE 31:5:1991

Counsel for the applicants : Ms R. Saladino, Mr R. Crowe,
(in order of appearance) Mr G.J. Lunney

Solicitors for the applicants : Pamela Coward and Associates

Counsel for the respondent : Mr B. Loftus

Solicitors for the respondent : Gallens Crowley and Chamberlain

ORDER

1. The order made herein on 3 April 1991 be vacated.

2. The application filed herein on 26 March 1991, in so far as it seeks, pursuant to s.41(6A)(a) of the Bankruptcy Act 1966 (Cth), an extension of the time for compliance with the requirements of the bankruptcy notice issued on 1 March 1991, be dismissed.

3. The said application, in so far as it seeks an order that the bankruptcy notice issued on 1 March 1991 be set aside, be adjourned until 31 July 1991 or until further order.

4. The time for compliance with the requirements of the said bankruptcy notice be extended up to and including 31 July 1991 or until further order.

5. Any party have liberty to restore the application to the list on two days' notice to the other parties.

6. The applicants pay the respondent's costs to date of the application, those costs to include the costs referable to the hearings on 3 and 4 April 1991 and this day.

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

JUDGE1

On 1 March 1991, on the application of CSR Limited trading as The Readymix Group ("the respondent"), a bankruptcy notice was issued by a Deputy Registrar in Bankruptcy addressed to Ross Joseph Lentini and Dominic Anthony Lentini ("the applicants"). The bankruptcy notice was based on a judgment obtained by the respondent in the Supreme Court of the Australian Capital Territory on 3 December 1990 in proceedings (No. SC 3 of 1988) commenced by the respondent as plaintiff against ACT Land Developments Pty Limited as first defendant and the applicants as second defendants. Judgment was entered in those proceedings for the respondent against all the defendants in…

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: [1991] FCA 295
Decision Date: 31 MAY 1991

CaseChat Overview and Summary

In this case, the applicant, Lentini, applied for an extension of the time to comply with the requirements of a bankruptcy notice issued against them, as well as an order to set aside the bankruptcy notice. The respondent, CSR Limited, opposed the application on the basis that no grounds had been stated in the application and the affidavit in support did not provide any facts or grounds to support the application. The matter was heard in the Federal Court of Australia.

The court had to determine whether the pending proceedings, which included an application for a stay of further proceedings on the judgment on which the bankruptcy notice was based and an appeal against that judgment, were proceedings to set aside the judgment. The court also had to decide whether the application to extend the time for compliance and to set aside the bankruptcy notice should be dismissed or adjourned, and whether the time for compliance with the requirements of the bankruptcy notice should be extended.

The court found that the pending proceedings were not proceedings to set aside the judgment. The court also found that the application to extend the time for compliance and to set aside the bankruptcy notice was defective as it did not state any grounds or facts to support the application. However, the court exercised its discretion to adjourn the application pending the determination of the appeal and to extend the time for compliance with the requirements of the bankruptcy notice up to and including 31 July 1991 or until further order. The court also ordered that the applicant pay the respondent's costs to date of the application.

In summary, the court dismissed the application to extend the time for compliance and to set aside the bankruptcy notice due to the lack of grounds or facts in the application. However, the court exercised its discretion to adjourn the application and extend the time for compliance with the requirements of the bankruptcy notice pending the determination of the appeal. The court also ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. The order made herein on 3 April 1991 be vacated.

2. The application filed herein on 26 March 1991, in so far as it seeks, pursuant to s.41(6A)(a) of the Bankruptcy Act 1966 (Cth), an extension of the time for compliance with the requirements of the bankruptcy notice issued on 1 March 1991, be dismissed.

3. The said application, in so far as it seeks an order that the bankruptcy notice issued on 1 March 1991 be set aside, be adjourned until 31 July 1991 or until further order.

4. The time for compliance with the requirements of the said bankruptcy notice be extended up to and including 31 July 1991 or until further order.

5. Any party have liberty to restore the application to the list on two days' notice to the other parties.

6. The applicants pay the respondent's costs to date of the application, those costs to include the costs referable to the hearings on 3 and 4 April 1991 and this day.

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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