Cavoli v Etl [2007] FCA 1191

FEDERAL COURT OF AUSTRALIA

Cavoli v Etl [2007] FCA 1191 BANKRUPTCY – Creditor served bankruptcy notice on Debtor – Creditor was assignee of a debt from firm of solicitors– no evidence that assignor had security over Debtor's property – no evidence that bankruptcy notice was issued solely for purpose of securing payment of debt – no evidence of a collateral purpose in a contrived arrangement to avoid assignor giving up security Held: 1. No evidence that Creditor's bankruptcy notice was issued as an abuse of process 2. Bankruptcy notice reinstated and time for compliance extended Bankruptcy Act 1966 (Cth) s 44 Etl v Cavoli [2007] FMCA 356 reversed Allesch v Maunz (2000) 203 CLR 172 cited Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited CSR Ltd v Della Maddalena (2006) 224 ALR 1 cited Maxwell-Smith v S & E Hall Pty Ltd [2006] FCA 825 cited Etl v Settle [2004] FMCA 718 cited Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 cited King v Collins [2007] NSWCA 122 cited

TONY CAVOLI v KARL ETL VID290 OF 2007

HEEREY J

SYDNEY (HEARD IN MELBOURNE) 16 AUGUST 2007 IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID290 OF 2007

BETWEEN: TONY CAVOLI

Appellant

AND: KARL ETL

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 16 august 2007

WHERE MADE: sydney (heard in MELBOURNE)

THE COURT ORDERS THAT:

1. The appeal is allowed. 2. The order of the Federal Magistrate of 22 March 2007 is set aside. 3. The time for compliance with the Bankruptcy Notice is extended to 7 September 2007. 4. The respondent pay the costs of the appellant of the appeal and at first instance. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID290 OF 2007