Genovese v BGC Construction Pty Ltd [2005] FCA 215

FEDERAL COURT OF AUSTRALIA

Genovese v BGC Constructions Pty Ltd [2005] FCA 215

BANKRUPTCY – bankruptcy notices – abuse of process – whether issue of multiple bankruptcy notices abuse of process – election to proceed on third notice – second notice issued by respondent creditor subject of application by appellant debtor to set aside – judgment on application reserved – respondent creditor informed appellant debtor it was not proceeding with second notice – respondent creditor failed to inform Federal Magistrates Court of election – judgment delivered in respondent creditor's favour – costs order in favour of respondent creditor – respondent creditor subsequently began enforcing costs order – whether conduct inconsistent with election.

Bankruptcy Act 1966 (Cth)

Abignano & Anor v Wenkart [1998] FCA 1468 followed Re a Debtor; Ex parte the Debtor v National Westminster Bank Plc [1983] 3 All ER 545 cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 cited Farrington v Deputy Commissioner of Taxation [2002] FCA 1013 applied In re Fredericke and Whitworth; Ex parte Hibbard [1927] 1 Ch 253 cited Re Hansen; Ex parte Hansen (1985) 4 FCR 590 cited In re a Judgment Debtor [1908] 2 KB 474 cited HERCOLE PIETRO GENOVESE v BGC CONSTRUCTIONS PTY LTD WAD 272 of 2004 LANDER J 11 MARCH 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD272 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: HERCOLE PIETRO GENOVESE

APPELLANT

AND: BGC CONSTRUCTIONS PTY LTD

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 11 MARCH 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Bankruptcy Notice 247 of 2004 is set aside. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.