Rose v Piscopo

Case [2010] FMCA 948


FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROSE & ORS v PISCOPO [2010] FMCA 948
BANKRUPTCY – Interim application filed in an application under s.81 of the Bankruptcy Act 1966 (Cth) for the Court to issue examination summons – interim application seeks discharge of the summons and pursuant to s.179 inquire into the conduct of the Trustee and have him removed from office.

Bankruptcy Act 1966 (Cth), ss.81, 134, 136,178, 179
Evidence Act 1995 (Cth), s.128
Federal Court Rules, o.27, r.4
Federal Magistrates Court (Bankruptcy) Rules 2006 (Cth), r.6.06
Uniform Civil Procedure Rules 2005 (NSW), r.15.1(1)

McQuade & Gummow, Australian Bankruptcy Law & Practice 6th ed

Adsett v Perlousis (1992) 37 FCR 201
Alafaci; In re; Registrar in Bankruptcy v Hardwick (1976) 9 ALR 262
Apple Computer Australia Pty Ltd v Wiley [2003] NSWSC 719
Bartlett v Barclays Bank Trust Co. Ltd(No.1) [1980] Ch 515
BDT Holdings Pty Ltd v Piscopo (No.2) [2009] FCA 1126
Boensch v Pascoe [2007] FCA 1977
Bredner v Granville – Grossman [2001] Ch 523
Brignishaw v Briginshaw (1938) 66 CLR 336
Brooks v Law Society of NSW [2008] NSWCA 31
Brooks v Prothonotory of the Supreme Court of New South Wales [2008] NSWCA 31
Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58
Commonwealth v Sheahan [2004] FCA 1301
Parry, RE, Dalton v Cooke [1969] 2 All ER 512
Daniels Corporations International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49
Doolan v Dare [2004] FCA 682
Ex parte Tatton; re Thorp (1881) 17Chd512
Ex parte Newitt; re Mansel (1884) 14 QBD 177
Fuller v Wiley [1999] FCA 656
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Head v Gould [1898] 2Ch 250 at 268
Hill v James [2004] NSWSC 55
Hill v Piscopo [2008] FMCA 574
Hunter v Hunter [1938] NZLR 520
James v Hill [2004] NSWCA 301
Jones v Dunkel (1959) 101 CLR 298
Karounas v Official Trustee (1988) 19 FCR 330
King v Henderson [1898] AC 720
Macchia v Nilant [2000] FCA 7
Maxwell / Smith v Donnelly [2006] FCAFC 150
Piscopo v Hill [2008] FMCA 1266
Piscopo v Hill [2008] FMCA 1455
Piscopo v Hill [2009] FMCA 658
Piscopo v Hill & Ors (No.3) [2010] FMCA 153
Piscopo v NOT Lawyers [2008] FCA 1907
Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122
Quinton v Proctor [1998] 4 VR 469
Re Biboso Pty Ltd (1995) 17 ACSR 730
Re Cside; ex parte Andrews (1979( 39 FLR 387
Re Challen; Ex parte Brown v Bendeich (unreported, Fed Ct of Aust, Beaumont J, 23 April 2006)
Re Eastern; Ex parte Davies (1891) 8Mor168
Re Excel Finance Corporation Ltd; Worthley v England (1994) 62 FCR 69
Re Hunt; Ex parte Hurt (1998) ADALR 236
Re Ladyman (1981) 55 FLR 383
Re Mulligan (deceased) [1998] 1 NZLR 481
Re North Australian Territory Co. (1890) LR 45Chd 87
Re Schrouder’s Wills Trust [2004] 1 NZLR 695
Re the bankrupt estate of Hudson (2004) 2ACB(NS)69
Re Weiss;…

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Rose v Piscopo [2010] FMCA 948
Case
[2010] FMCA 948
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CaseChat Overview and Summary

This case involved an application under s.81 of the Bankruptcy Act 1966 (Cth) for the Court to issue examination summons, and an interim application seeking discharge of the summons and an inquiry into the conduct of the Trustee and his removal from office. The applicants were Elena Rose, Michael O’Niell, and Terry Donald Hill, and the respondent was Samuel Piscopo, the Trustee in Bankruptcy of the estate of Terry Donald Hill. The applicants alleged that the examination proceedings and the trusteeship were being used to oppress and harass them, and were furthering a vendetta against them. They further alleged that the Trustee had failed to disclose material facts and had materially misled the Court. The applicants sought that the examination summons be discharged, subpoenas be set aside, and the Trustee be removed from office. The Court found that the applicants had not established that the examination summons were issued for ulterior collateral purposes to oppress, harass or further a vendetta. The Court also found that the applicants had not established that the Trustee had failed in his administration or had materially misled the Court. The interim application was dismissed and the Trustee’s costs were awarded on a party-party basis.

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