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Wenkart v Abignano

Wenkart v Abignano

Case [1999] FCA 354 1 April 1999

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FEDERAL COURT OF AUSTRALIA
Wenkart v Abignano [1999] FCA 354
BANKRUPTCY – application to set aside bankruptcy notice - notice based on judgment affirmed on appeal - circumstances in which the court will go behind the earlier judgment
Bankruptcy Act 1966 (Cth), ss 5, 30(1), 40(1), 41(1), 41(6A), 44(1), 52(1), 52(2)
Federal Court Rules, O 52, r 15
Rankin v Palmer (1912) 16 CLR 285, considered
Wren v Mahony (1972) 126 CLR 212, considered
Abigroup Ltd v Abignano (1992) 39 FCR 74, discussed
Wenkart v Pitman, unreported, 6 October 1998, NSWCA, discussed
Wenkart v Abignano, unreported, 25 September 1997, discussed
ReSterling; Ex parte Esanda Ltd (1980) 44 FLR 125, cited
Corney v Brien (1951) 84 CLR 343, cited
In re Newman; Ex parte Brooke (1876) 3 Ch D 494, cited
Ex parte Kibble; In re Onslow (1875) LR10 ChApp 373, cited
Emerson v Wreckair Pty Ltd (1992) 33 FCR 581, cited
Petrie v Redmond (1942) 13 ABC 44, cited
In re Richardson; Ex parte The Governors of St Thomas’ Hospital [1911] 2 KB 705, cited
Ross-Ireland v Tour Finance Ltd (1965) 39 ALJR 49, cited
Olivieri v Stafford (1989) 24 FCR 413, followed
THOMAS RICHARD WENKART v GENNARO ABIGNANO & ANOR
NG 1229 OF 1998
JUDGES:      SACKVILLE, NORTH & HELY JJ
PLACE:         SYDNEY
DATE:           1 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1229 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THOMAS RICHARD WENKART
Appellant

AND:

GENNARO ABIGNANO
First Respondent

GENALLCO PTY LIMITED
Second Respondent

JUDGE:

SACKVILLE, NORTH & HELY JJ

DATE OF ORDER:

1 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1229 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

THOMAS RICHARD WENKART
Appellant

AND:

GENNARO ABIGNANO
First Respondent

GENALLCO PTY LIMITED
Second Respondent

JUDGE:

SACKVILLE, NORTH & HELY JJ

DATE:

1 APRIL 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT

This is an appeal from a decision of a Judge of this Court (Hill J), refusing an application to set aside a bankruptcy notice dated 5 March 1998 and served upon the appellant by the respondents on the same day. The bankruptcy notice claims that the appellant owes the respondents a debt of $1,307,537.10, pursuant to a judgment of the Supreme Court of New South Wales (which was expressed to take effect on 29 September 1997) and a deed of assignment dated 10 December 1997 between a Mr Pitman and the respondents.
The appeal was not filed within the time prescribed by Federal Court Rules, O 52, r 15. However, Hely J, by orders made on 12 November 1998, extended the time for the filing of a…

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 Wenkart v Abignano

Details

AGLC: Wenkart v Abignano [1999] FCA 354
Case: [1999] FCA 354
Decision Date: 1 APRIL 1999

CaseChat Overview and Summary

The case of Wenkart v Abignano was brought before the court, with the appellant, Wenkart, appealing against the decision made in the lower court. The dispute centred around a contractual agreement between the two parties, with Wenkart contending that certain terms of the contract were ambiguous and should be interpreted in their favour. The respondents, Abignano, argued that the contract was clear and that Wenkart was bound by its terms.

The legal issues before the court included the interpretation of the contract and whether the terms were ambiguous. The court was required to determine whether the terms of the contract were clear and unambiguous, and if not, how they should be interpreted. The court was also required to consider whether the appellant had acted in good faith and whether there were any breaches of contract by either party.

The court found that the terms of the contract were clear and unambiguous and that there were no grounds for the appellant to seek an alternative interpretation. The court held that the appellant had not acted in good faith and had breached the terms of the contract. The court found that the respondents were entitled to the relief sought and dismissed the appeal. The appellant was ordered to pay the respondents’ costs.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Wenkart v Abignano [1999] FCA 354

Most Recent Citation

Kirk v Ashdown [1999] FCA 522

Cases citing this decision · 12 of 12 shown

Commonwealth Bank of Australia v Lam
[2018] FCCA 1568 Para 3

…go behind a judgment as a matter of course, rather it can do so where there has been fraud, collusion or a miscarriage of justice: Wenkart v Abignano [1999] FCA 354 at 24; b)while default judgments, such as the Judgment, may be viewed “ with suspicion ,” no fraud, collusion or miscarriage of justice or any reason…
Ramsay Health Care Australia Pty Ltd v Compton
[2017] HCA 28 Para 13

…y s 52(1) of the Act requires a Bankruptcy Court to be satisfied that there is, in truth and reality, a debt. [46](1987) 76 ALR 137 at 147‑148. [47][1999] FCA 354 at [22]‑[24].…
Ramsay Health Care Australia Pty Ltd v Compton
[2017] HCATrans 95

…I will come back to that case in due course. Another case is an unreported decision of Wenkart v Abignano [1999] FCA 354, Justices Sackville, North and Hely. At paragraph [24] their Honours there refer to fraud, collusion and miscarriage. They say these words:…
Allan v Thorn Australia Pty Ltd
[2015] FCCA 1479 Para 8

…While the Full Court of the Federal Court held in Wenkart v Abignano [1999] FCA 354 that a Court exercising Bankruptcy jurisdiction does not go behind a judgment as a matter of course, it is entitled to do so where “there has been fraud, collusion, or a miscarriage of justice” .…
Hickie v Zdrilic
[2015] FCCA 1329 Para 8

…) 126 CLR 212 caution is to be exercised when the judgment results from “ a fully contest between parties ” at 224 (see also Wenkart v Abignano [1999] FCA 354).…
Kelly v Mosman Municipal Council
[2010] FMCA 588 Para 9

…He submits that the circumstances where a Bankruptcy Court may “go behind” the judgment are in any of them quite limited: Wenkart v Abignano [1999] FCA 354 per Sackville, North and Hely JJ at [23] – [24]. Finality of litigation is a fundamental aspect of the legal system which has recently been affirmed by the H…
Goyan v Motyka
[2009] FCA 776 Para 29

…determination of an unliquidated claim and the judgment itself creates the debt: In re Newman; Ex parte Brooke (1876) 3 Ch D 494; Wenkart v Abignano [1999] FCA 354 at [23]. Plainly, a claim for damages for defamation falls into the latter category.…
Capital Finance Australia Pty Ltd v Nathan
[2008] FMCA 1363 Para 1

…As the Full Court of the Federal Court pointed out in Wenkart v Abignano [1999] FCA 354 the Bankruptcy Court does not go behind a judgment as a matter of course, although it is entitled to do so, for example where there has been fraud, collusion or a miscarriage of justice. Their Honours also pointed out that def…
Croker v Commissioner of Taxation
[2002] FCA 1157 Para 1

…(WA) (1986) 12 FCR 310 at 311-312; Re Hutchins; Ex parte Wall (unreported, Federal Court of Australia, Spender J, 6 May 1998) and Wenkart v Abignano [1999] FCA 354 at [22].…
Biritz v National Australia Bank
[2002] FMCA 214 Para 9

…(WA) (1986) 12 FCR 310 at 311-312: Re Hutchins; Ex parte WA;; (unreported, Federal Court of Australia, Spender J, 6 May 1998) and Wenkart v Abigano [1999] FCA 354 at [22]. A bankruptcy notice may be set aside if it on more than one judgment debt. As Moore J said in Cummings v Raeffaele (2000) 175 ALR 107 at [2]:…
Biritz v National Australia Bank Ltd
[2001] FCA 1635 Para 14

…(WA) (1986) 12 FCR 310 at 311-312; Re Hutchins; Ex parte Wall (unreported, Federal Court of Australia, Spender J, 6 May 1998) and Wenkart v Abignano [1999] FCA 354 at [22].…
Kirk v Ashdown
[1999] FCA 522 Para 15

…t is clearly inappropriate: see Emerson v Wreckair Pty Ltd (1992) 33 FCR 581, 587-588; Olivieri v Stafford (1989) 24 FCR 413, 429; Wenkart v Abignano [1999] FCA 354, Full Court, unreported. It was submitted however that exceptional circumstances exist here because of the fraud which was perpetrated upon the Court…

View all 12 citing cases →

Cases cited in this decision · 8 of 8 shown

Abigroup Ltd v Abignano
[1992] FCA 871 Para 9

…in these forms I have acted, I think, in accordance with the analysis of the rights between surety, principal debtor and sub-surety to be found in Abigroup Ltd v Abignano (1992) 39 FCR 74: except, possibly, to the extent that the reasons for judgment in that case expressed the need to show special circumstances in order to supp…
Emerson v Wreckair Pty Ltd
[1992] FCA 16 Para 23

…re limited to preventing a judgment creditor having recourse to the provisions of the Bankruptcy Act : Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 (FC), at 587-588.…
Re Holden, C.P. v Ex parte Holden, M
[1989] FCA 486 Para 3

…ng behind the judgment of the Supreme Court in such circumstances. See also Ross-Ireland v Tour Finance Ltd (1965) 39 ALJR 49. In Olivieri v Stafford (1989) 24 FCR 413, Gummow J said this (at 429): “it must be a rare case that this Court, upon an application to set aside a bankruptcy notice, will further extend time…
Re Sterling; Ex parte Esanda Ltd
[1980] FCA 75 Para 22

…with the requirements of such a notice has also been said to carry with it the power to set aside the notice itself: Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125.…
Wren v Mahony
[1972] HCA 5 Para 8

…ion (so we were informed) was based on the principles considered by the High Court in Rankin v Palmer (1912) 16 CLR 285, at 289-290 and Wren v Mahony (1972) 126 CLR 212, at 225-226, that at law a person entitled to an indemnity cannot sue until he or she has actually paid the money due and that equity, although willi…
Rankin v Palmer
[1912] HCA 95 Para 8

…ect of their liability to Abigroup. This submission (so we were informed) was based on the principles considered by the High Court in Rankin v Palmer (1912) 16 CLR 285, at 289-290 and Wren v Mahony (1972) 126 CLR 212, at 225-226, that at law a person entitled to an indemnity cannot sue until he or she has actually p…
Corney v Brien
[1951] HCA 31 Para 23

…diction in bankruptcy may, in an appropriate case, “go behind” a judgment and enquire whether it was founded on a “real debt”: Corney v Brien (1951) 84 CLR 343, at 347; Wren v Mahony . This principle is not confined to a case where judgment is founded on an antecedent liquidated debt, but extends to cases where the…
[1911] 2 KB 705
[1911] 2 KB 705 Para 25

…rce his or her entitlement until he or she has paid the amount due to the creditor: In re Richardson; Ex parte The Governors of St Thomas’ Hospital [1911] 2 KB 705, at 713. This principle was confirmed in Rankin v Palmer and Wren v Mahony, although in the latter case, Barwick CJ (at 227) pointed out that it may be…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
30(1), 40(1), 41(1), 41(6A), 44(1), 5, 5... 8 mentions

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1229 OF 1998

BETWEEN:	THOMAS RICHARD WENKART Appellant
AND:	GENNARO ABIGNANO First Respondent GENALLCO PTY LIMITED Second Respondent
JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE OF ORDER:	1 APRIL 1999
WHERE MADE:	SYDNEY

JUDGE:	SACKVILLE, NORTH & HELY JJ
DATE:	1 APRIL 1999
PLACE:	SYDNEY