Wenkart, Thomas Richard v Abignano, Gennaro & Anor [1998] FCA 1035

FEDERAL COURT OF AUSTRALIA BANKRUPTCY – whether bankruptcy notice should be set aside –judgment for monies owed to third party assigned to creditor – appeal against judgment by both debtor and creditor heard but judgment not yet delivered – if either appeal successful debt would be extinguished – whether rights conferred by the judgment are properly to be regarded as property and hence assignable where judgment conditioned on undertaking by third person– whether bankruptcy notice defective in form because it did not refer to the giving of the undertaking – whether Court may go behind the judgment upon which the bankruptcy notice is based – where judgment obtained after a contest in which the parties were represented and no allegation of fraud or abuse of process suggested. BANKRUPTCY – whether time for compliance with the bankruptcy notice should be extended – manner in which the discretion ought to be exercised in the circumstances of the case. CONTRACT – construction of terms of assignment – whether ambiguity should be resolved by giving effect to the obvious intentions of the parties ascertained by their language – whether agreement should be construed in the context in which it came into being Bankruptcy Act 1966 (Cth) – ss 40(3)(d), 41 Wilkinson v Osborne (1915) 21 CLR 89 – cited Emerson v Wreckair Pty Ltd (1991) 33 FCR 581 – cited Bourke v Beneficial Finance Corporation Ltd (1994) 124 ALR 716 – cited Corney v Brien (1951) 84 CLR 343 – cited Wren v Mahony (1972) 126 CLR 212 – cited Monroe Schneider Associates Inc v No 1 Raberem Pty Ltd (1992) 37 FCR 234 – cited Re Seghabi; Ex parte GIO General Ltd (1994) 52 FCR 296 – cited Palette Shoes Pty Ltd v Krohn (1937) 58 CLR 1 –cited Reardon Smith Line Ltd v Hansen-Tangen [1976] 3 All ER 570 – cited Corumo Holdings Pty v C Itoh Ltd (1991) 24 NSWLR 370 – cited