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 15Rankin 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, followedTHOMAS 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
AppellantAND:
GENNARO ABIGNANO
First RespondentGENALLCO PTY LIMITED
Second RespondentJUDGE:
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
AppellantAND:
GENNARO ABIGNANO
First RespondentGENALLCO 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…
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- AGLC
- Wenkart v Abignano [1999] FCA 354
- Case
- [1999] FCA 354
- Decision Date
CaseChat Overview and Summary
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
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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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